THE Court of Appeal yesterday dismissed an application from the Jamaica Labour Party’s (JLP’s) Barrington Gray seeking judicial review of the East Hanover magisterial recount, effectively clearing the way for the tallying of ballots cast in the September 3 general elections and the declaration of a winner for the constituency.

Attorneys for Gray had argued during the two-day hearing that magistrate George Burton had erred when he rejected some ballots with the identification marks torn off after previously accepting similar ballots.

However, attorneys for the People’s National Party (PNP) candidate, Dr DK Duncan, in their submissions, urged the court to uphold an earlier Supreme Court ruling rejecting the request for a judicial review and that the appellant’s complaints should be addressed by way of election petition court.

In its ruling in favour of Duncan yesterday, the Appeal Court said it found that the magistrate acted within the law when he rejected the 56 ballots, which were so badly torn that the presiding officer’s signature, the date, name of the constituency and polling division number were missing.

The panel of judges – justices Algernon Smith, Paul Harrison and Gloria Smith – further noted that an application for judicial review could only have been granted if the magistrate was acting outside the law.

Following the ruling, JLP attorney Harold Brady indicated to the Observer that if Duncan is declared winner of the seat following the tallying of the ballots, which is expected some time next week, his client would go by way of the lengthy election petition to unseat him.

Yesterday’s ruling has put an end to nearly a month of legal battles stemming from the magisterial recount requested by Duncan last month. Duncan had requested the recount on the heels of the official recount, which had shown that Gray had won the closely contested seat. Duncan had told the Observer that he had won the election by 10 votes, according to his tally during the magisterial recount.

Reacting to yesterday’s ruling, Gray said that justice was not served. The court’s decision, he argued, only served to “disenfranchise” persons who cast their vote in the elections.

“I don’t feel that justice was served because you can’t throw away people’s votes because of a mistake on the part of an election officer,” Gray told the Observer. “You can’t disenfranchise the voters.”

But a very pleased Duncan was quick to rebut Gray’s claim.

“No voter was disenfranchised,” Duncan told the Observer. “… All the marks required to be there by the Representation of the People Act were missing, and the magistrate said he was not satisfied that these ballots came from the constituency or were issued by the presiding officer.”