A question for both parties:
First, is there any way in your analysis that Badger and Transition... (hereafter AR 6) can be reconciled to nullify only the first preference votes for Al of the 3 contested votes, but somehow still permit application of the 2nd and subsequent preferences listed? I'm having trouble seeing at what point in the counting the votes would be applied to second preferences under the PR-STV statute, but the Court would like your (plural) assessment here.
Second, a question for the Plaintiff (which I'll allow the Defense to subsequently respond to if it wishes, as I will for later questions to the Defense): To what degree did the issue of voter intent (or lack thereof) apply in the Badger holding?
For the Defense (with Plaintiff right of rebuttal): Are you conceding that the specific holding on ballot interpretation in Badger cannot be reconciled with the election results you ask this Court to uphold?
To your first question directed to both of us, the defense would argue that invalidating the voters' first preferences would have no effect but to deny the non-candidate the votes. The votes in question would automatically be included for Franzl in the first count.
To the second question, the one posed directly to me, I would say that the reasoning in
Badger can be applied, just not to reach the conclusion suggested by the plaintiff that the entire ballots are to be invalidated.
It is important to note that preferences had a different meaning in the previous electoral system than under PR-STV. In reality, one was casting 3 (or 5) votes of differing value. Votes did not transfer and there was an important distinction between a first and a second preference. Invalidating the first preference for a non-candidate made sense, as invalidation would not effect any of the other votes cast.
Indeed,
Badger states: "That George Orwell cannot accept votes means that he cannot win, not that the vote is invisible on the ballot paper or in counting terms."
Ignoring Al in the count should have no other effect than to deny him the votes as a non-candidate. This interpretation fits the spirit of the cited case more accurately than the plaintiff's interpretation.
Badger goes on to state that "highest preference" can be regarded as functionally equivalent to "first preference". If this is the case, then one can only conclude that, logically, this goes both ways. If a first preference is highest, then vice versa, the highest preference must be seen as equivalent to a first preference.
A.R. 5 states: "3. A first count shall then be made quantifying the total number of first preferences each valid candidate did receive."
Surely this means that the most highly preferenced VALID candidate is to be included in the first count. In other words, as previously argued, this is not a vote transfer as the plaintiff suggests, but rather a necessary part of the first count. It is the only logical application in PR-STV, where only the order of preferencing is relevant, not the numerical preferences themselves, as under the previous electoral system.
Should the Court, however, rule differently and feel that the defense has not made a convincing case, the defense would lastly like to draw attention to the fact that
Badger specifically affirms that the election administrator is within his rights to go against precedent if he feels that doing so is more in line with the law. If nothing else, his certification, as it stands, is a reasonable application of this electoral system in a way that is most in mine with voter intent.
