Clarence Valley Council in northern New South Wales is without a mayor after a bungled election tie-break led to a candidate being incorrectly declared the winner. Councillors Peter Johnstone and Ray Smith were tied on votes for mayor after a ballot of other councillors this week. The council’s general manager, Laura Black, then told them their names would be written on pieces of paper and a random draw would determine the victor.
Mistaken elimination rule leads to wrong result
Shortly before drawing the name, Black wrongly declared that whoever she picked would be eliminated. Smith’s name was pulled out, and Johnstone was incorrectly elected mayor. NSW local government laws stipulate that if there is a tie for votes between two remaining mayoral candidates, “the one elected is to be chosen by lot”.
The council said in a statement released on Friday: “Prior to the draw taking place, the General Manager, Laura Black, mistakenly advised those present that the councillor whose name was drawn would be eliminated. Cr Smith’s name was subsequently drawn and, based on that advice, Cr Johnstone was declared Mayor.”
Council seeks legal advice and Johnstone resigns
“Council has sought urgent confirmation from the Office of Local Government regarding the appropriate remedial action to address the error. Once advice has been received, Council will provide further public information regarding the outcome and required next steps,” the statement added. Johnstone has since resigned as mayor, pending another vote. He posted on social media that he expected that vote to occur on Friday afternoon, but it was deferred as the council continued to seek legal advice.
“For those who don’t know, there was a Mayoral election yesterday in Clarence Valley and I stood. Unfortunately, the final vote was 4 votes each for Ray and me which meant that it went down to names out of a hat,” he posted on Friday morning. “In the early rounds of the vote, the name drawn out of the hat is eliminated and we were told this would be the case in this round, so when Ray’s name was drawn, I was announced the winner and chaired the rest of the meeting. However, the procedures state that the name drawn in the final round is the winner, not the one eliminated. So it should have been Ray declared the winner.”
Legal uncertainty and the fateful draw vessel
NSW local government laws state that “to choose a candidate by lot, the names of the candidates who have equal numbers of votes are written on similar slips of paper by the returning officer, the slips are folded by the returning officer so as to prevent the names being seen, the slips are mixed and one is drawn at random by the returning officer and the candidate whose name is on the drawn slip is chosen”. Black, as general manager, was the returning officer.
Johnstone posted that he expected a new election to be held before 2 October. But he also told Guardian Australia on Saturday morning that the legal advice could mean Black’s declaration as the returning officer meant the decision was final – even though it was wrong. Adding even more confusion to the election, Johnstone said it was not clear that a hat was in fact used to draw the names. He was at the back of the room and did not see the fateful vessel. “I have a feeling – and they’ve used something like this before – that it was actually a small box, almost like a shoebox,” he said. “It’s not actually a hat, that’s just a phrase.” Smith was contacted for comment.
