Public Elections (Jersey) Law 2002: rescindment of Article 39A.

STATES OF JERSEY

PUBLIC ELECTIONS (JERSEY) LAW  2002: RESCINDMENT OF ARTICLE  39A

Lodged au Greffe on 4th February 2009 by Deputy G.P. Southern of St. Helier

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

t o r e fer to their Act dated 10th June 2008 in which they approved Amendment No.  3 to the Public

Elections (Jersey) Law 2002, and to agree, in principle, to –

(a ) re s cind Articles 39A and 62A of the Public Elections (Jersey) Law 2002;

( b ) c h arge the Privileges and Procedures Committee to prepare the necessary amending Law for

debate.

DEPUTY G.P. SOUTHERN OF ST. HELIER

REPORT

Article  39A was inserted into the Law by the previous Privileges and Procedures Committee in Amendment No.  3 to the Public Elections (Jersey) Law 2002 (P.65/2008) and is reproduced here –

39A Candidate or representative not to interfere with application for registration

1. A candidate, or a representative of a candidate shall not –

1. c omplete, on behalf of a person entitledunder Article  38, or assist such a person in completing, any form requiredto be completed for the purposes of an applicationunder Article  39(4);
2. d eliver, orcause to be delivered, to the Judicial Greffier, onbehalfof a such a person, any form or supporting documentsrequiredforthepurposesofan application under Article  39(4);or
3. p rovide transport forsuch a personsoasto enable the person tomakeanapplication in person under Article 39(4).

2. P aragraph (1) shall not prohibit a candidate or representative of a candidate providing a person entitled under Article 38 with the form (if any) required to make an application under Article 39(4 (a).

Article 62A reads as follows –

62A Interference with postal and pre-poll voting

A candidate or representative of a candidate who contravenes Article  39A(1) shall be guilty of an offence and liable to a fine of level  3 on the standard scale.

In presenting the case for the introduction of Article  39A, the then Deputy of St.  Mary had the following to say during the debate –

" W o u ld anyone really expect candidates or their canvassers to be allowed to enter the polling booth with a voter? I think not. Then why should we countenance their presence at the time of completing a postal vote?"

As the present Connétable of St.  Mary, she has maintained her position. On the radio recently she stated that assistance rendered by a candidate to a voter in applying for a postal vote is –

" li k e going into the polling booth with the voter on election day".

This analogy is of course completely untrue and misleading. Any assistance delivered to the potential voter concerns the application form that is required in order to apply to have a ballot paper sent to their home so that the person may vote by post. The candidate is at no stage anywhere near the ballot paper, postal or otherwise. No one has suggested that any candidate should be present either in the polling booth or at the time of completing a postal vote.

The vote remains, as it should be, a secret and personal decision, which takes place in private.

I repeat: Article  39A concerns only the completion of an application form requesting a postal vote. The request and the act of voting are separated by several days at least. The integrity of the vote is not compromised in any way by any assistance rendered in completing the application form.

The changes proposed by PPC in 2008 not only demonstrate a fundamental misunderstanding of the democratic process, they demonstrate a level of petty-mindedness which I believe has no place on our electoral process. More importantly, and far worse, Article 39A actively discriminates against some voters and is open to challenge as being a disproportionate restriction on Article 3 of the First Protocol of the Human Rights (Jersey) Law 2000 –

Article 3

Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Furthermore for persons with disability, this right is given clarity by the UN Declaration:

• According to the Universal Declaration of Human Rights 1948; article 21 paragraphs one and two, the right of each and every individual to political participation is affirmed.

The new UN treaty on disability rights, article 29 on participation in political and public life:

• States Parties shall guarantee to persons with disabilities their political rights and the opportunity to enjoy them on an equal basis with others (my emphasis)

• On an equal basis with others in accordance with national laws of general application, directly or through freely chosen representatives.

As this report demonstrates, there are several groups of voters who would find it extremely difficult, or in some cases impossible, to cast their vote without the opportunity to vote by post and amongst these are many who would need assistance in completing the form. In the absence of readily accessible help, Article  39A constitutes a disproportionate restriction.

At a time when we are attempting to increase participation in our elections by making it easier for people to vote, the inclusion of Article  39A makes little or no sense.

The report accompanying P.65/2008 pointed out that prior to this amendment –

"there is no restriction in the Law on candidates or their representatives assisting with the postal voting process".

This proposition will restore that situation, and remove a misguided restriction.

Examination of the tables produced in Appendix 1 serve to demonstrate a clear trend, in that 2  districts stand ou with high numbers of postal votes distributed: St.  Helier No.  2 and St.  Martin. What does this reveal about thes electoral districts? It shows that the candidates are prepared to work hard at getting on doorsteps to meet and listen to electors. In the course of such a thoroughly old-fashioned approach to electioneering, these candidates come across electors who wish to vote but find it difficult to do so, and are prepared to assist those who need a postal vote to do so. What is wrong with that? PPC saw some devilish hand at work in what they term as "interference" –

"PPC is concerned that the current provision could be seen to interfere with the fairness of the election process. Any elector who has received significant assistance from a candidate or his or her representative to obtain a postal vote may feel, in some way, pressurised to vote for that candidate when the ballot paper is received from the Judicial Greffier."

Voters, obviously weak-minded in some way, may feel "pressurised", after an interval of several days or a week, into voting for the candidate who assisted with getting them the postal vote. PPC present no evidence for such a statement. But on the flimsy grounds of their "concern", the Committee persuaded the Assembly to render "significant assistance" in getting a postal vote illegal.

Furthermore, much was made in the debate of June last year of the low return rates from St.  Helier and St.  Martin postal applications.

Apart from rendering candidates who assist the postal voting process subject to a £2,000 fine, what impact does this have on voters?

Those who wish to have a postal vote fall in to one or more of several groups –

1 .  T h o se who will be absent from the Island on election day

2 .  T h o se who have an illness, disability or mobility problem that makes getting to the polling station

difficult/impossible

3 .  T h o se who are too busy with work and/or family commitments to attend.

These are the officially recognised groups. There are also the following, who also often prefer to vote at home where any difficulties may be kept private and help is available from family when required –

4 .  T h o se who have a learning difficulty and cannot read

5 .  T h o se for whom English is a second language

6 .  T h o se with partial sight

7 .  T h o se who are elderly and/or infirm who wish to vote but will not venture forth in foul weather

(often the case in November)

8 . T h o se who do not usually vote, either from disillusionment or apathy, but who just might use a

postal vote because it is easier.

Some of those in group  2 (those with serious tremor or with rheumatism of the hands) along with many of those in groups 4, 5 and 6 are unable to fill in the application form and actually need assistance to participate in the voting process. I certainly am aware of many voters in these groups who would not vote were they not able to vote in the privacy of their own home. I also am aware that foul weather will cause significant loss in voter turnout among those in group 7.

Members should also bear in mind that what we are talking about is an application for a postal vote. It takes all of between 30 seconds and 2  minutes to complete for those who know the form:

Name; Address; Reason; Signature; Date; Done.

The ballot form arrives some days later when the candidate is long gone. There is no undue influence; there is merely common decency in helping those who need it to get the voting method they want to allow them to vote.

Imagine the situation that would arise when a potential voter asks directly for help, as many do. What is the candidate to say? "I am forbidden by law to give you any help whatsoever. Get your home help/neighbour to help. I cannot." The situation in not only absurd, it is perverse. Examination of the figures given in the tables in Appendix 1 of this report reveals that requests for postal votes are not all converted into actual votes cast, with a conversion rate of between 50% and 75% in the St. Helier districts. Putting another obstacle in the way of obtaining postal votes will simply make voting figures worse.

The adoption of Article 39A has made the following acts illegal –

· A  ss istance in completing the postal voting application form

· D  el ivering or causing the delivery of forms to the Judicial Greffier

· P r o vision of transport to enable a voter to attend the Judicial Greffe.

I believe that any person in groups 4, 5 and 6 above could properly claim that Article 39A disproportionately interfered with and limited their right under Article  3 of the First Protocol of the Human Rights (Jersey) Law 2000 to fully exercise their right to participate in free elections in that it discriminated against them by setting artificial barriers to their ability to vote.

The simplest illustration of the discriminatory nature of Article  39A is provided by the examination of the impact of point  2 above on those with a severe mobility problem. This means that they cannot get to the polling station to vote in person. They have a request for a postal vote completed. How do they get the form to the Judicial Greffe or Parish Hall ? They have mobility problems, so they cannot do so in person. They put it in the post. This costs

35p. This group of people have to pay 39p to exercise their right to vote.

To further examine the arbitrary nature of the effects of Article  39A, it is interesting to compare the rules concerning voter registration with those which apply to voting, and postal voting in particular, following the adoption of 39A Remember the registration and voting elements are each essential in the electoral process. No registration means no vote.

· A ss istance in completing the postal voting application form is illegal under Article 39A.

· A ss istance in completing the voter registration form remains legal and positively encouraged. ___________________________________

· D el ivering or causing the delivery of forms to the Judicial Greffier is illegal under Article 39A.

· D e livering or causing the delivery of voter registration forms to the Parish hall remains legal and is seen as helpful.

____________________________________

· P r o vision of transport to enable a voter to attend the Judicial Greffe to register their pre-poll or postal vote is illegal even on election day before noon.

· P  r o vision of transport to enable a voter to attend the Polling Station on election day remains perfectly legal.

____________________________________

Furthermore, the extreme nature of this amendment in its effect on the actions of candidates and the rights of the electorate is demonstrated by 2 additional considerations –

The first concerns the deadline for applications for a postal vote. In order to receive a postal vote, applications must have been made by no later than 12.00 noon on Friday 21st November, 3 working days before the polling day on Wednesday 26th November. After that time, the only recourse for a voter who cannot vote in person because of illness, disability or infirmity must request what is known as a "sick vote", whereby a member of the parish honorary brings a ballot paper directly to the voter in their home on polling day.

How does that voter obtain this vote? They may call the parish hall to request one, but most voters unless they are chronically sick and know the system, are not aware of this option. In many cases, it is the candidate in calling on his constituents after the postal deadline has passed, who will phone the parish to make these arrangements for election day. This is a widely accepted practice in all parishes, and perfectly legal. This then gives rise to a further anomaly –

• Assistance in completing the postal voting application before 12.00 noon formis illegal under Article 39A.

• Assistance in obtaining a sick vote, after12.00 noon, remains legal.

Further, one has to turn to the all-encompassing nature of the wording of the amendment made by 39A. The rendering of "assistance in completing the application" is very wide remit. For example a candidate may assist in one of several ways, for example the candidate may –

Write on the form directly, in the case of those who cannot because of physical or mental disability;

Help the constituent, by discussing which of the 3 options could apply; or

Assist by phoning up the parish hall and request a visit from a parish official.

All of these options could be classed as rendering assistance and mean that the candidate becomes subject to prosecution and a potential £2,000 fine.

Finally, those who suggest that banning all assistance from the candidate in completing the application form, as the Law now does, is a minor issue and that obtaining a postal vote is a simple issue are incorrect. A majority of members of the public are unaware of postal voting, and are certainly ignorant of the application and the mechanics of the process. This can come as no surprise to members. The publicity promoting this facility is extremely poor, as illustrated by the advertisements placed in the press by the Judicial Greffe, to be found in Appendix  2. These are life-size. Some members may have problems reading the notice themselves; imagine what those elderly or those with a sight problem would make of it. Those electors who can read it and are keen to vote, but have a mobility problem, would search in vain for a telephone number to contact and request a form. They may not be able to get to the Greffe to pick up a form; after all if they could, they would be voting in person. They may choose to write requesting the form; another 35p in order to vote.

There can be no doubt that 39A fails to meet the UN treaty conditions on disability rights –

"States Parties shall guarantee to persons with disabilities their political rights and the opportunity to enjoy them on an equal basis with others"

and, as such should be rescinded. It is, in effect, discriminatory.

Financial/manpower implications

There are no significant financial or manpower implications for the States arising from this proposition.

Deputies 2002 contested seats

Electoral District Registered Papers sent out Papers Papers not

electors returned returned

St. Helier No. 1 3,483 102 73 29 St. Helier No. 2 3,526 159 100 59 St. Helier No. 3 6,506 69 66 3 St. Saviour No. 1 2,355 36 27 9 St. Saviour No. 3 1,822 23 20 3 St. Brelade No. 1 1,972 40 39 1 St. Brelade No. 2 4,238 44 38 6 St. Clement 4,650 40 38 2 Grouville 2,852 55 47 8 St. Lawrence 2,893 46 43 3 St. Martin 2,248 284 195 89 St. Mary 1,040 41 36 5 St. Ouen 2,254 31 26 5 St. Peter 2,493 28 27 1

Deputies 2005 contested seats

Electoral District Registered Papers sent out Papers Papers not

electors returned returned

St. Helier No. 1 4,289 68 49 19 St. Helier No. 2 4,032 186 96 90 St. Helier No. 3 7,586 99 88 11 St. Saviour No. 1 2,692 22 19 3 St. Saviour No. 2 2,473 29 24 5 St. Brelade No. 1 2,185 36 29 7 St. Brelade No. 2 4,703 59 56 3 St. Clement 5,306 51 43 8 St. Lawrence 3,149 66 61 5 St. Mary 1,130 19 17 2 St. John 1,769 69 63 6

DEPUTIES ELECTION  26TH NOVEMBER 2008 Postal & Pre-Poll Voting

Ballots Missing Ballots Sent Ballots not returned before

Parish Out Returned noon on 26/11/08

St. Brelade No. 1 31 29 2 St. Brelade No. 2 77 66 11 St. Clement 56 52 4 St. Helier No. 1 83 59 24 St. Helier No. 2 111 84 27 St. Helier No. 3 97 92 5 St. John 42 40 2 St. Lawrence 29 27 2 St. Martin 76 65 11 St. Mary 14 13 1 St. Peter 47 38 9 St. Saviour No. 1 32 28 4 St. Saviour No. 2 24 22 2

TOTAL 719 615 104