By L Andrew S Riccio
CJ Legal Contributor

On Feb. 7, 2013, the Supreme Court of the Turks and Caicos Islands decided that the election of Amanda Missick as Member of the House of Assembly for Electoral District No. 7, Cheshire Hall and Richmond Hills, Providenciales, was invalid.

On the Nov. 9 2012 General Election ballot for District No. 7 were Amanda A. Missick, Oral Isaac Selver, and Edward Emanuel Smith. On the day of the election, 844 votes were cast, with 394 for Ms. Missick, 364 for M. Selver, and 58 for Dr Smith. Mr. Selver brought a petition to the Supreme Court seeking to declare the results a nullity because Dr Smith was ineligible to run for office.

Dr Smith, a long-time resident and citizen of the United States, returned to the Turks and Caicos in 2010 after retiring. In 2011, he began working as a Supervisor of the Census, and on 25 October 2012, he declared his eligibility to run for public office. It was on this day in October 2012 that Dr Smith officially declared that he was not disqualified from being elected a Member of the House of Assembly, by stating his nomination of candidacy. After the results of the General Election, Mr Selver filed the petition to have the election deemed void.

Four Issues in the Case

The Supreme Court decided upon four issues in this case. The first issue was whether Dr Smith was disqualified from election; the second was, if disqualified, should he have been on the ballot at all; the third, whether the 58 votes were “thrown away” by those voters; and fourth, whether Dr. Smith’s participation invalidated the election.

The Constitution of the Turks and Caicos Islands prohibits a person from election to the House of Assembly if he or she has voluntarily pledged allegiance to a foreign state.

The Court found that since Dr Smith never renounced his U.S. citizenship, nor surrendered his US passport, allegiance to the US was maintained. In addition, Dr Smith traveled on his US  passport in July 2012, only a few months before declaring his eligibility to run for office. As a result, the Court found that Dr Smith was in fact disqualified from the election.

The second issue concerned whether Dr. Smith could properly have been on the ballot as a result of disqualification. The Court found that since Dr Smith was disqualified on the day he was nominated, he was therefore incapable of being chosen as a Member of the House of Assembly.

“It was plainly not intended by the framers of the Constitution that a candidate who is disqualified from being elected should offer himself for election and that the outcome of the election should hang on the decision to rid himself – or not – of the disqualifying feature,” stated Justice Ramsay-Hale in the decision.

In the third issue, the Court had to determine if the votes in Dr Smith’s favor were intentionally cast by voters knowing that they would be treated as “throw away votes.”

The Court found that any notice of Dr. Smith’s disqualification was not so “clear, definite, and certain” that the 58 voters could be found to have purposefully thrown away their votes. The Court made this finding despite Ms Missick’s counsel noting that it was common knowledge in discussions in the ‘Situation Room’ at Sweet T’s, that Dr Smith was ineligible.

Lastly, based on the findings of disqualification, the Court decided that Dr Smith’s participation in the election rendered the District No. 7 election invalid: “Had he not been on the ballot the voters may have expressed their votes differently.”

The Court was persuaded by the greater number of votes for Dr Smith than was the margin between Ms Missick and Mr Selver. Had those 58 votes been redistributed, the outcome could have been very different.

Result

Therefore, Justice Ramsay-Hale found that the election was void because Dr Smith was a disqualified candidate and his participation on the ballot affected the outcome of the election.

L Andrew S Riccio is an international law associate at Assouline & Berlowe, P.A. in Miami. He focuses his practice on international arbitration and litigation cases for Latin American and Caribbean clients. He can be reached atariccio@assoulineberlowe.com.