Ballots, not boxes, decide elections

Jun 26, 2025 Features / Columnists, Peeping Tom

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Kaieteur News – The controversy surrounding the alleged invalidity of some 14,000 votes cast on the East Coast of Demerara during Guyana’s 2020 general and regional elections is a manufactured red herring and a legally moot point. It is premised on a fundamental misunderstanding—or deliberate distortion—of the legal meaning of the phrase “valid votes” under the Representation of the People Act (ROPA), and the constitutional framework governing Guyana’s electoral process. A close reading of the Caribbean Court of Justice’s (CCJ) July 2020 decision in Ali v David lays this matter to rest.

The suggestion that votes cast on the East Coast are invalid simply because documents such as the Official List of Electors (OLE), poll books, or marked lists were not found in the ballot boxes is legally untenable. These source documents are not determinative of the validity of ballots, and indeed, are not required to be placed in the ballot box after the close of polls. Section 87(2) of ROPA prescribes which documents are to be placed in specific envelopes and pouches for secure transmission, but not all of them are required to go into the box. More importantly, as the CCJ emphasised, the issue of “valid votes” must be understood ex facie, that is, on the face of the ballots themselves.

The CCJ could not have been clearer:

“The concept of ‘valid votes’ is well known to the legislative framework governing the electoral process. The concept has a particular meaning in that context. The phrase appears several times in the Representation of the People Act. As we saw at [9] above, section 96 of that Act, for example, contains that precise phrase. That section calls on the Chief Election Officer to calculate ‘the total number of valid votes of electors which have been cast for each list of candidates’ (emphasis added).”

In this legal context, “validity” does not turn on whether ancillary paperwork is available after the fact. It is not a question of bureaucratic housekeeping or clerical completeness. The validity of a ballot is determined during the count, at the close of poll, by those present—including party agents—according to clear criteria such as whether the ballot was properly marked, or whether it was spoiled or rejected. As the CCJ explained:

“Validity in this context means, and could only mean, those votes that, ex facie, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties.”

This process is governed by the statutory framework and carried out at the place of poll immediately after the close of voting, not weeks later through an administrative review by the Chief Election Officer (CEO). Once the count is completed and certified, the CEO has a singular, narrow responsibility: to add up the totals and prepare a report based on the valid votes already determined at the place of count. The CCJ was categorical that the CEO has no authority whatsoever to conduct a fresh evaluation of validity or to unilaterally discard votes:

“The CEO is not a lone ranger. He must act within the parameters of the Constitution and the law… He does not have the authority to disenfranchise tens of thousands of electors in the absence of any election petition challenging the validity of their votes, on the basis of alleged anomalies and irregularities.” This is crucial. The CEO’s function is purely arithmetical. He cannot assume judicial powers and determine whether entire boxes or ballots are to be excluded. Doing so would violate both ROPA and Article 177 of the Constitution. The only legal avenue for invalidating votes on the basis of irregularities or fraud is through an election petition filed with the High Court, as per Article 163.

Hence, arguments about the absence of documents in ballot boxes—no matter how loudly or frequently repeated—do not impugn the validity of the ballots. They cannot. The law simply does not permit such a conclusion. To do so would give electoral officials extra-legal power to negate the will of the people and short-circuit the judicial process. That is precisely what the CCJ warned against.

The argument about 14,000 invalid votes is a political fiction, not a legal fact. The absence of certain documents in the ballot box is not proof of invalidity and does not vitiate ballots already deemed valid during the count. The CCJ’s ruling leaves no doubt that “valid votes” are determined ex facie at the close of polls, and not weeks later by administrative sleight-of-hand. The CEO has no lawful power to discard ballots. If anyone believes votes were illegally cast or counted, their remedy lies in an election petition, not in the public imagination, and not in post-facto justification.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.) 

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• ballots, columnists, Guyana Elections, Official List of Electors, Peeping Tom

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