#BTColumn – Our electoral laws are constitutionally flawed

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Garth Patterson

The raging controversy regarding the likely disenfranchisement of thousands of otherwise qualified electors due to the COVID-19 virus has highlighted a patent constitutional defect in the existing electoral laws. The Electoral and Boundaries Commission (“EBC”) recently confirmed that Barbadians who have tested positive for the COVID-19 virus and are in isolation or in quarantine will not be allowed to vote.

Emergency Management Order and the directives made pursuant to it contain restrictions on the freedom of movement of persons who have contracted or are suspected of contracting the disease.

It is illegal to break home isolation or quarantine without the express authority of the Chief Medical Officer and, since no exception has been carved out for persons exercising their right to vote, and no alternative arrangements exist for voting from home, it means that COVID-positive electors will have no opportunity to vote.
Section 42(2)(b) of the Constitution provides that any law providing for the election of members of the House of Assembly shall in particular “contain provisions designed to ensure that as far as practicable any person qualified to vote at an election of members of the House of Assembly, has a reasonable opportunity of voting.”

The Representation of the People Act (“ROPA”) and the rules and regulations made under it govern the conduct of general elections in Barbados. Section 6 declares that every qualified elector “is entitled to vote”. And section 39 of the ROPA provides that “all persons voting as electors at an election shall do so in person at the polling station allotted to them”.

With the exception of provision for overseas voting by diplomats and their family members, there are no alternative arrangements in place for voting by persons who are unable to attend a polling station.

This has never presented a major issue in the past; but then again, the voting public in Barbados has never before been confronted with a once-in-a-century global pandemic during a general election. This presents unique challenges for the Government generally, and the ROPA in particular.

In the context of the COVID-19 pandemic and an existing state of emergency, and with the real prospect of thousands of voters being disenfranchised, the existing provisions of the ROPA are proving to be clearly inadequate to fulfil its constitutional mandate to ensure that all qualified voters have a reasonable opportunity of voting.

The experience in other countries, such as the United States of America, where in 2020 mid- term elections were held during the pandemic, shows that, with appropriate arrangements in place, the pandemic itself is not an insurmountable obstacle to the conduct of fair elections and should not represent an impediment to the due exercise by all qualified voters of their sacred right to vote.

In the USA, in-person voting at polling stations was augmented by mail-in voting, allowing voters the opportunity to vote from home, if they so desired. The outdated ROPA makes no such provision and inflexibly restricts voting to polling stations only. But the Government owes the voting public a duty of the strictest fidelity to the democratic process.

Every qualified voter, therefore, has a reasonable, legitimate expectation that it would only conduct the general election in a manner that respects and upholds his sacrosanct right to vote; and that appropriate provision would be made in the electoral laws to ensure that, even under pandemic conditions, that democratic right was protected.

The Government’s failure to shepherd the necessary amendments before calling a general election therefore leaves the ROPA itself vulnerable to constitutional challenge on the basis that it is inconsistent with, or contravenes, section 42 of the Constitution, since, with the advent of the pandemic, the existing provisions of the ROPA won’t ensure that every qualified voter has a reasonable opportunity of voting.

It was not designed to accommodate a general election during a pandemic – where potentially thousands of infected voters have been confined to home isolation or quarantine and will be unable to attend a polling station legally or safely and, consequently, will be denied any opportunity to vote.

A successful legal challenge to the ROPA on the basis of its inconsistency with or contravention of the Constitution could result in the whole election process being abruptly stopped in its tracks, since the courts have jurisdiction to prevent an election from being conducted under a law that is unconstitutional.

Any such challenge will, in my view, likely succeed, unless the Government can demonstrate that it was impracticable to amend the ROPA to make provision for alternative voting arrangements, such as mail-in voting or online or internet voting.

However, given the prevalence of these alternative systems in many other countries, notably Canada, the USA, the United Kingdom, Switzerland and several EU countries, the Government would face an uphill battle in advancing that argument.

In an October 2020 article published on Pew Research Centre’s website, the authors said that “[o]ut of 166 countries for which data is available, 40 used postal ballots in their most recent national election, according to country experts surveyed before the COVID-19 outbreak by the Electoral Integrity Project.

Postal ballots were used most widely in Europe and North America and are also common in some countries in the Asia- Pacific region, such as India, Indonesia, South Korea and Sri Lanka.” It also stated that voting by internet is used in four countries: Armenia, Canada, Estonia, and Switzerland.

Doubtless, in the wake of the COVID-19 pandemic, these alternative systems of voting are even more prevalent today.

Parliament having been dissolved and the election writs already issued, the Government finds itself mired in an unenviable predicament, with limited options to ensure that all Barbadians, whether COVID-positive or not, will get to vote.

To avoid disenfranchising potentially thousands of qualified voters, the Government is faced with a difficult Hobson’s choice: either (i) suspend the COVID-19 directives on election day and allow thousands of COVID-positive voters to vote in person voting at polling stations, likely exacerbating an already out-of-control spread of the virus; or (ii) suspend the elections for 30 days (this is the statutory maximum), summon both Houses of the just-dissolved Parliament (permissible in the event of an emergency), enact amendments the ROPA to facilitate alternative forms of voting, and then put in place the infrastructure and systems for the alternative voting – all before February 18, 2022.

Given the timing, logistics and the constitutional hurdles that will have to be vaulted, the second option is, in reality, no choice at all. That leaves the unpalatable option of allowing COVID-positive voters to vote at polling stations.

However, even if the President adjourns the elections to February, considering the grave public health implications, and the enormous logistical, resourcing, and infrastructural challenges that it will face in securing safe in-person voting by infected voters, the Government is probably in no position, at this late stage, to accommodate them. And even if it could, from a public health perspective would that be the reasonable and responsible thing to do? As a practical matter, therefore, the die is cast; the electoral process is well in train and, like the behemoth Omicron variant itself, is a constitutionally unstoppable force.

With the projected exponential increase in daily confirmed positive cases and, barring some miracle (or the intervention of the courts), the undemocratic disenfranchisement of an inestimable number of otherwise qualified voters seems an inevitable certainty.
Barbadians deserve better than that.

Garth Patterson Q.C. is a Senior Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St. Lucia in 1990 and 2011 respectively.