Saturday, May 04, 2019

Uncertain ballot papers in the Cotswolds

One of the more interesting side shows in the local elections this week has been the result in the Tetbury Town ward on Cotswold District Council. The Conservative candidate retained the seat with a majority of just one vote over an independent and a lot of attention has focused upon one particular ballot paper that ultimately prevented the result from being a tie. (Details at Gloucestershire Live: Ballot paper with 'Brexit' and an arrow written across it accepted as deciding vote in controversial Cotswolds local election)

(The results for the district election, and indeed for just about every election in the area for the last five years can be found at Cotswold District Council - Election Results.)

There has been a lot of comment on the web and Twitter about this ballot paper and it's clear that many people are unaware of either the standard practice in election counts or the official guidance available. It is also clear that nobody has actually got a picture or scan of the ballot paper.

As someone who has lost count of the number of times I've been an election or counting agent, here's a quick rundown of how things work.

Most ballot papers have clear crosses in boxes for one or more candidates and the staff will separate them into separate piles. However some ballot papers aren't clear and if the counting staff are uncertain, or if a counting agent representing a candidate/party challenges a ballot paper's inclusion, then the ballot paper is set aside for adjudication.

The adjudication is carried out by the Returning Officer or by a deputy formally delegated the task. They have to formally determine whether or not the ballot paper shows a clear intention or if it is unclear or if the ballot paper must be rejected for other reasons.

The five categories of rejected votes are as follows:

Want of an official mark
This is an anti-counterfeiting measure. Today it's usually done by printing a special symbol on the ballot paper (with a different symbol for postal votes) but in the past special hole punches were used (and some disputed elections hinged on the failure of staff to properly punch the papers).

Voting for more Candidates than voter was entitled to
A straightforward category.

Writing or mark by which voter could be identified
This is to preserve the integrity of a secret ballot and aims to make it impossible for observers to definitely connect a vote to a voter. Writing your name, address or elector number will invalidate the vote.

Being unmarked or wholly void for uncertainty
This covers a wide range from completely blank ballot papers to those with just a message on them to those where the voter's choice can't be easily determined.

Rejected in part
This only comes up in multi-member elections. Sometimes some of the voter's choices are clear and others aren't and only the clear choices are admitted to the count.

The Returning Officer does not rule in a vacuum but instead draws upon the rules set down by legislation and previous court cases and summarised in official Electoral Commission guidance. There are several booklets for the various different elections, but the relevant one here is the excitingly named Dealing with doubtful ballot papers - Supporting local government elections in England and Wales (PDF). This contains examples and the relevant legislation or case references to guide. Occasionally more detailed guidance has to be consulted - the longest I've ever seen was when someone had neatly written "BNP" in a candidate's box. (The BNP was not standing in that election.) The ruling was that this was a valid vote and the candidate's face was a sight to behold. Never has a vote received been less wanted.

The rules and guidance aim heavily towards inclusion:
2.21 The key phrase in the Rules is: 'A ballot paper [...] shall not [...] be deemed to be void if an intention that the vote shall be for one or other of the candidates clearly appears.'
(Rule 47(3), Schedule 2, Local Elections (Principal Areas) (England & Wales) Rules 2006.) (Emphasis in the original.)
Specifically, a vote is still valid even if it is not placed in the box and even if it does not use a cross:
2.3 A ballot paper should not be rejected because the vote is:
• not marked in the proper place
• marked other than by a cross
• marked by more than one mark
(Rule 47(3), Schedule 2, Local Elections (Principal Areas) (England & Wales) Rules 2006)
The principles for determining the outcome are clearly set down:
2.22 Each ballot paper should be considered on its own merits and decisions should be taken on a case-by-case basis.
2.24 The key question a Returning Officer should ask is whether the voter has, on the face of the paper, indicated a reasonably clear intention to vote for a candidate or candidates.
Now the ballot paper in question reportedly had a statement written on it (reports vary as to whether it was "I'm voting for Brexit" or just "Brexit") and an arrow pointing to the Conservative candidate (a detail that is not present in all the reports).

A reporter at the count made some tweets, including pictures and videos, that clearly show there was long and detailed consideration on this ballot paper with the guidance consulted:

As a result the ballot paper was ruled to show a clear selection of the Conservative candidate and thus a valid vote for him. Note that this was a ruling on a ballot paper and it was not a "tie breaker", despite how some of the reports have described it. Rulings on ballot papers are made in elections all the time, though the ballot papers involved rarely swing the outcome. Tie breakers only come when the number of votes after adjudication are exactly equal and a determination is made one way or another.

It cannot be denied that this is not the easiest of ballot papers to rule on. And once again it must be emphasised that everyone talking about this one online has not actually seen the paper in question. But from what has been reported it sounds like the Returning Officer ruled rightly that the ballot paper showed the voter selecting one of the candidates.

The Independent candidate has said he intends to bring an election petition to challenge the result. If he does then whatever the outcome it should at least provide a bit more case law to help future rulings and the booklet linked to here will need to be updated.

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