Cayman is entering “uncharted waters” with its first people-initiated referendum, according to Elections Supervisor Wesley Howell.
Howell spelled out the process that will take place before a vote can happen on the cruise port project and fielded questions from the public at a public meeting at Town Hall in George Town Thursday night.
Members of the campaign group and opposition politicians Ezzard Miller and Kenneth Bryan also spoke at the event.
Here, we look at the key questions around the referendum process, and how they were answered.
Now that the campaign group has announced it has hit the required number of signatures. What happens next?
Cruise Port Referendum Cayman announced last month that it had collected and verified signatures from more than 25% of the electorate, calling for a referendum on the project. The next step is for them to submit that petition to the Elections Office, something that is expected to take place this week.
At that point, Howell said it would be up to his office to independently check every signature on the list is genuine before the petition is declared verified and passed to Cabinet. Once that process is done and the 25% threshold is verified, then the petition is presented to Cabinet. Cabinet then has to decide if the other conditions for a referendum, under Section 70 of the Constitution, have been met and bring what Howell described as a “bespoke referendum bill” to the Legislative Assembly. Once that bill is passed, returning officers will be appointed and the Elections Office will plan and organise the referendum.
What is the verification process?
Howell said his office would go door-to-door across the Cayman Islands as they seek to verify all the signatures. There will also be opportunities for people to come into the Elections Office as well as public events to allow people to confirm that they signed the referendum. He said every signature would need to be personally verified. Provisions will be made for people who are off-island to verify their signature.
That sounds onerous. How long will it take?
Howell said the Elections Office carried out a door-to-door verification process of the electoral roll for some 20,000 voters before the 2012 referendum on voting reform. That was done in the space of three-and-a-half months. With similar resources, he believes the petition signatures, currently estimated at around 5,500, could be verified in a matter of a few weeks.
Does the Elections Office have the resources to do this?
Not currently. The office operates a “skeleton crew” during non-election years but Howell said he had alerted Deputy Governor Franz Manderson that a request for supplementary funds for more resources was likely and he does not anticipate any issues with that.
What if people signed the petition but change their mind?
If someone changes their mind and claims they did not sign, then their signature cannot be validated and they will not be counted.
Howell said, “If they match someone on the voters list and they turn out to say they didn’t sign, or arguably they changed their mind, then we cannot verify that person.”
What is to stop government interfering or delaying the verification process?
Once the Elections Office is activated, Howell said he is directly answerable to Governor Martyn Roper, rather than any legislator. He said the office and its staff would be independent of the elected government and the governor has ultimately responsibility for ensuring the process is carried out properly.
“I actually take a leave of absence from my chief officer role and go to the Elections Office full-time,” he said.
What if people, particularly civil servants, fear retribution if they are discovered to have signed the petition?
Howell said the deputy governor had already indicated there was no problem with civil servants signing the petition. He said there was “nothing to fear” from the verification process, which he described as an independent, administrative exercise to verify the signatures were genuine and ensure the petition was valid.
Roy Tatum, senior adviser to the Premier Alden McLaughlin, attended the meeting in a personal capacity. He stood up during the question-and-answer session to say he believed there was no question of any interference from government or any retribution against anyone who signed the petition.
If the petition is verified, is there any reason a referendum would not be held?
Howell said there were other tests that Cabinet had to consider to determine if all the elements of the constitutional provision had been met. He said these were outside of his purview. Section 70 of the Constitution states that a people-initiated referendum on a matter of “national importance” should take place if a petition signed by 25% of the electorate is presented to Cabinet. The only flexibility for Cabinet, once the petition is verified, appears to be around the definition of “national importance”. It is feasible that Cabinet could seek to argue that the cruise port does not meet that barrier. Asked if a determination on this could delay the verification process, Howell said it would not. He said there was no way for legislators to be involved in the verification process, which falls under the governor’s supervision, in any way.
Who sets the question and the date of the referendum?
The Constitution indicates that Cabinet sets the referendum question and is required to set a date for the vote within a “reasonable time period”. Howell acknowledged there was no legal definition of “reasonable time” in the law. Amid fears from the public that the wording of the question, if set by Cabinet, could be loaded to favour a pro-port vote, North Side MLA Ezzard Miller said the question would be set through a bill that would be debated publicly in parliament. He said voters could have input through their legislators once the bill is published and could hold them accountable at the ballot box if they didn’t support a question that reflected the intent of the petition.
When is the earliest a referendum could be held?
No one was able to give clear timelines on when the vote might take place, but Howell said the Elections Office would not be responsible for dragging it out.
“My boss for this is the governor and he would not tolerate me dragging this on forever,” he said.
If the petition is presented to the Elections Office this week and the office mobilises quickly to get the extra funding and staff it needs to begin verifying the signatures, the Compass understands a November referendum is possible. The unknown element is the length of time it might take between the presentation of a verified petition to Cabinet and the passage and implementation of a “bespoke” referendum law to facilitate the vote. Once the law is passed and the writ of the referendum is issued, the Elections Office estimates it would take 10 weeks to organise polling, including provisions for postal votes, ahead of ‘Decision Day’.
Could government sign a binding contract with a developer in the interim?
There is nothing to stop government from proceeding with its negotiations and signing a deal if it wishes. Roy Bodden, historian and former politician, has urged the campaigners to seek a commitment to pause contract talks until the verification is complete, but there is no indication that this is in government’s plans. It is possible that the campaigners could seek an injunction through the courts, but there is no legal precedent to determine if this is likely to be successful or not. Equally, there is no indication that the presence of a signed contract would be enough for government to avoid a referendum. It may be that signing an agreement of this kind would risk incurring financial penalties if there is eventually a referendum and a ‘No’ vote against the dock. Like a lot of the details around the referendum, this aspect is unclear.
Isn’t there a referendum law to deal with all this?
There is no general referendum law, which is why bespoke legislation has to be passed each time a ballot of this kind is held. Two short clauses in the Constitution are all officials have to go on. Several in the audience, including lawyer Steve McField, questioned why no referendum law had been passed, clearly setting out the verification process, the steps involved and clear timelines, and dealing with some of the other aspects flagged during the meeting.
Howell acknowledged, “There is no standing referendum law, so every referendum as it is now has to have a law passed in parliament to authorise, initiate and set up the terms of the referendum.”
Can the campaigners still collect signatures once the petition is submitted to the Elections Office?
Howell said he believed they could. He said the petition was not official until it was verified and presented to Cabinet, so it would be open to the group to add signatures as his staff went about their work of verifying the names.
Is the result of the referendum binding on government?
The Constitution states that the result is binding as long as more than 50% of the electorate support it.
That means a simple majority of those that turn out would not be enough for the port project to be stopped. Depending on how the referendum question is phrased, those that do not show will effectively be counted as votes for the port. Based on the current electoral roll, at least 10,578 of the 21,155 registered electors would need to turn out and vote against the port to prevent government from going ahead with the development. Voting will take place in all 19 districts and arrangements will be made for postal voting and mobile voting along the same lines as during a General Election.