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:

They’re still going through the book - a lot of page turning pic.twitter.com/VKrjehVYQJ

— Leigh Boobyer (@LeighBoobyer) May 3, 2019

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.

Comments on ballot papers don't deliver a message

At some point I'll post my more general reflections on the council and European elections last week but for now I want to focus on one aspect that doesn't get much discussion - spoilt ballot papers at the count.

For those who've never been to an election count, one of the important later stages is the adjudication. This is when all ballot papers identified by the counting as "Doubtful" - i.e. those that don't seemingly express a clear & correct number of intentions - are ruled on by either the Returning Officer or a formally designated deputy. Candidates and/or their agents are entitled to attend to witness the rulings though challenges must be submitted through the legal process. Crucially it's often the case that not every candidate/party is represented at this but that's their own decision.

Coming late in the count and usually straight after a long and intense campaign, all the candidates and agents are invariably tired and focusing their remaining energies on spotting valid votes for their own side. The ballot papers also go by fairly fast, especially in a borough such as Newham, which has many doubtful votes.

Some votes are ruled as valid and returned to the pile. Others are ruled out for one of the following reasons:

• Want of an official mark
• Being unmarked or wholly void for uncertainty
• Voting for more candidates than voter was entitled to
• Writing or mark by which voter could be identified

The first is rare nowadays due to changes in the way ballot papers are designed, printed and issued. The fourth should be self-explanatory though it includes polling numbers as well as names. The third is also known as "Overvoting" and is particularly common when there are multiple ballot papers given out at the same time - in my opinion the vast majority of these that I saw last week were either people who read the instructions on one ballot paper and followed them on the other two or people who put both their first and second preference for Mayor in the same column.

The second is something of a catch-all category, including blank ballot papers, ticks and crosses in so awkward a place they couldn't be determined, various attempts to vote for "None" and a variety of comments.

Why people cast spoilt ballot papers is ultimately known only to them, though I suspect a lot of the blanks come from people being given three papers and mistakenly assuming they can only vote on one of them. I'd be interested to hear people's experience from other multiple election counts but I'm not persuaded they're a sign of a mass deliberate "Vote Blank" campaign.

The comments are usually clearer, expressing dissatisfaction with some or all of the candidates or the absence of a particular party. But frankly they don't make any impact beyond comedy and irritation - it's a common opinion at counts that nobody who has seen how this process works would bother trying to send politicians a message by the ballot paper. The official returns bundle them in with the blanks and mistakes. The agents are primarily concerned to a) save good votes and b) work out where their supporters made mistakes & how to get them to get it right next time. Nobody is transcribing messages. If the agents report any of the messages back to party activists it will be for a laugh rather than anything else.

So all the essays and brief comments scribbled on ballot papers are ultimately ineffective. If you wish to not vote or to cast a blank then you're perfectly entitled to. But if you want to send a message to politicians in general or in particular, this is not the way to do it. Try email or Twitter or even, to show how serious you are, snail mail.