FREO ELECTION CHALLENGE DISMISSED

MAGISTRATE Trevor Darge today dismissed invalidity claims against the botched WAEC local government elections in Fremantle in 2023.
He said the WA Electoral Commission made a “terrible mistake” when it mailed thousands of incorrect ballot papers to voters in central and coastal wards, but not enough to account for higher voter turnouts in the two contested wards.
In his reasons sent to StreetWise after a brief appearance by the parties and members of the public and media, Magistrate Darge said he looked into the validity of the election, “with a wide view – mere procedural errors are not sufficient to void the election unless their effect was substantive”.
He added incorrectly (as StreetWise heard the allegations in court on October 24, 2024): “In this hearing there was no suggestion that the candidates or the Commission had any corrupt motive. Nor was it alleged that a specific provision of the LGA was breached.”
In fact, witness Helen Cox showed the court photographs of the two incorrect coastal ward ballot papers and two declaration envelopes she received both times from WAEC. She never voted in coastal and said the signature and handwriting on the declaration slip in the first mail out were forged.
The document has central ward crossed out and underneath the words ‘coastal ward’ in writing she claimed was not hers. State solicitor Michael Olds said she was mistaken. Magistrate Darge agreed and states without addressing specifically and separately the possibility of a forged signature: “My impression of Ms Cox’s evidence is that she was determined to present a view that she was the subject of an additional bungling by the Commission in sending her multiple incorrect ballots rather than accepting that she was (correctly or incorrectly) registered to vote in two Wards.
“She then chose to double down when presented with these facts by asserting that there had been fraudulent behaviour on somebody else’s behalf in sending in her vote.”
Magistrate Darge said he was only interested in the overall impact the WAEC error had on the electoral process: “This includes determining the effect of the response on the electorate.”
He said there is no particular provision that has been breached, “but I accept the overall electoral process suffered a setback due to the error, the effect of which can rightly be challenged”.
The decision by the Court of Disputed Returns cannot be appealed.

Missing votes & maths

MAGISTRATE Darge states under, ‘The Weighting of Votes’, that there were a number of voters who lodged incorrect ballots and then failed to submit a correct vote with the second ballot.
According to WAEC, leaving aside informal votes, there were 243 electors who failed to return the second ballots in the Central Ward and 142 in the Coastal Ward.
“It was not suggested that these voters never received the second ballot. There votes are simply unaccounted for. Understandably, there was no attempt by the parties to interview all voters in the two Wards to determine their preferences where the initial vote had been lodged on the first ballot but no vote submitted on the second ballot. Such a level of detail would be excessive however I am left with an absence of information about the way those missing votes should be weighted.”
Understanding voting preferences is a ‘complicated endeavour’.
In terms of mathematics he states: “Here it is not immediately clear whether there are lost votes as the central argument is one of confusion leading to a failure to vote. That, as I have said above, is not really supported by the voting turnout. However, there is also the issue of the mathematics concerning the unreturned votes.
“The position in the Central Ward was mathematically clear (1091/761 – a difference of 330) irrespective of the unreturned second ballots (243) and the unsuccessful candidate Mr Pynt did not take a role in complaining about that result.
“In respect of the Coastal Ward (1198/1034 – a difference of 164) the position is slightly more complex than the 142 unreturned second ballots. This is by reason of the preferential voting system … that might not have occurred had the voting error not happened, there was no suggestion here that the election problem caused one party to benefit over another.”
Magistrate Darge concluded the WAEC error in swapping ballots was momentous.
“No doubt there was some voters who were affected by the error and unable to participate in the election. However, I am not satisfied that those numbers were likely to be significant. It is impossible to now go back in time and predict the election result if the error had not occurred.
“But neither is it likely that the error could have led to an alternate result. The only mathematical evidence presented suggests that a certain number of electors who returned the first ballot did not return the second. This may have led to an argument that the confusion created a failed election however there is no explanation for the actions of these voters and the results do not suggest a likely different result.
“Election errors and irregularities are a feature of life. Each is regrettable. This is regrettable and embarrassing. But I am not satisfied that the electorate was disenfranchised or the result of the error was so great that there was no election at all.”