by Tom Anderson
September 18, 2013
“The ballot being a means of protecting the franchise, must not be made an instrument to defeat it.”
“Where the intention is clear, doubtful questions of form should be resolved in favour of the franchise.”
“The language of the Act read as a whole and in favour of the franchise as all such Acts should read.”
“The mark he made is a clumsy dot or a clumsy figure 1. It is very inartistic but remembering that voters may be young or old, ill or well, scholarly or not, I resolve the doubtful question of form in favour of the franchise, there being no doubt as to the real intention.”
Those words from 1919 are printed on Australian Electoral Commission (AEC) posters that adorn the walls of AEC tally rooms throughout the country with the following comment:
“[t]he problems identified by Justice Isaacs are as relevant today as they were then.”
Justice Isaacs made these comments when presiding over Kean v Kerby in the High Court, sitting as the Court of Disputed Returns for the House of Representatives seat of Ballarat in 1919.
Justice Isaacs went on to be Sir Isaac Isaacs, Australia’s ninth governor-general (1855-1948) and the first one to be Australian born.
But before all that, he was The Honourable Isaac Isaacs, Member of the Australian Parliament for Indi, elected in the very first Australian Parliament at Federation and Indi’s representative from 9 May 1901 to 10 October 1906.
This election in Indi has been like none before in living memory. Normally, Indi is a very safe seat and a winner can be declared within hours of the counting process being commenced.
But this time the result on the night was too close to call, and so began a long, arduous process to ensure an accurate count
The AEC has been constantly in the spotlight, with people constantly checking for updates online and taking to social media asking why the count was taking so long and why couldn’t they count faster.
Here I will attempt to explain what happens at the polling place after the polls close and in the tally room in the days after the election.
This account is based on my experience working as an electoral official for over 30 years, my research of AEC documents on the web, my observations inside the Indi tally room after being invited to act as a scrutineer for the ALP this week and informal discussions with senior electoral officials after the completion of counting on the two days I was there.
In the tally room, the action is anything but slow, but timeframes mentioned here are based on my observations of when the information started to appear on the AEC Virtual Tally Room (VTR) website.
So what does a scrutineer do?
The AEC website says: “Candidates are not allowed to enter polling places, except in order to vote. They are also not permitted to observe the counting of votes (the scrutiny) for elections in which they are candidates. They have the right, however, to appoint scrutineers to represent them during the polling and throughout the various stages of counting ballot papers.”
As a scrutineer, you have the right to be present when the ballot boxes are sealed, when they are opened, when votes are being issued, and when the votes are sorted and counted so you may confirm the integrity of election processes on behalf of the candidate who has appointed you.
On behalf of candidates, scrutineers may observe:
- the polling,
- the counting of ballot papers (the scrutiny),
- the preliminary scrutiny of declaration envelopes,
- the further scrutiny of declaration votes, and
- the fresh scrutiny of all votes.”
When the polls close on election night the following process begin:
On election night, the counting of ordinary votes begins in each polling place immediately after the poll closes at 6pm on election day. The counting of ordinary votes taken at pre-poll voting centres also commences as soon as possible after 6pm on election day.
When the House of Representatives election and Senate election are held at the same time, the House of Representatives ballot papers are scrutinised before Senate ballot papers.
On election night, polling officials are required to complete four main tasks after the close of polls:
- count the first preferences on the House of Representatives ballot papers
- conduct a two-candidate-preferred count of the House of Representatives ballot papers (note: this is an indicative count only)
- count the first preferences on the Senate ballot papers
- count and sort any declaration vote envelopes received during the day (these remain unopened).
On election night in Indi, a sealed envelope was opened containing the names of the candidates on which the original two-candidate-preferred count of the House of Representatives ballot papers is to be based.
On election night the House of Representatives ballot papers are initially sorted by the polling officials into first preference votes for each candidate and informal ballot papers. The results are then tabulated and the first preference vote figures for each candidate are telephoned to the relevant DRO.
Divisional staff then enter these figures for each polling place into the national computerised Election Management System, which in turn updates the Virtual Tally Room (VTR) on the AEC website.
On the completion of the count of first preferences for the House of Representatives at each polling place, the officer-in-charge must, as directed by the relevant AEO, conduct an indicative distribution of preferences on a two candidate-preferred basis. This provides an indication of the likely outcome of the election in each division.
The procedure for the indicative two-candidate-preferred count is outlined below.
- After nominations close, the AEC selects two candidates in each division to whom preferences of all other candidates will be distributed indicatively on election night. These candidates are chosen in most cases on the basis of previous election results.
- The names of the two candidates are not made public before the close of polling. At each polling place, the ARO announces the names of the two candidates at the commencement of the count.
- AEC staff sort the ballot papers into first-preference piles for each of the candidates. The ballot papers for the two nominated candidates are removed to a secure area and the ballot papers for the remaining candidates are notionally allocated to one of the two nominated candidates according to who is more preferred or gets the ‘best preference’.
For Indi the top two candidates were listed as Sophie Mirabella (Lib) and Robyn Walsh (ALP). This decision was made by an electoral official six weeks before polling day, based on historical results.
In the case of Indi, the vote turned out to be nothing like the historical. As this became clearer on election night, the AEC quickly changed the two-candidate-preferred count to be between Cathy McGowan (Ind) and Sophie Mirabella. (Note: when describing the count or showing the results the candidates are always listed in the same order in which they were listed on the ballot paper).
This caused a delay in two-candidate-preferred (2CP) results being shown on the AEC virtual tally room website on election night.
On election day 49,320 votes were cast in polling places throughout Indi. In the two weeks prior, there were approximately 28,499 votes cast at early pre-polling voting centres (PPVCs) throughout the electorate. That made a total of 77,819 votes to be counted on election night.
Cathy McGowan received 24,299 votes and Sophie Mirabella received 32,393 votes. This left the preferences of the other candidates’ 21,297 votes to be counted. This process started as soon as the actual ballot papers were received back at the tally room in Wangaratta on Saturday night.
This process took about 24 staff almost three and a half days to fully complete. As part of this process a “fresh scrutiny” of all ballot papers was also conducted.
Each candidate in the election is allowed to appoint one scrutineer for each polling official involved in the counting process.
In Indi there were up to 24 AEC officials counting and checking votes and at times 50-plus scrutineers overlooking the process.
For each polling official sitting at a table there were three to four scrutineers behind them, looking over their shoulder, as they checked each vote.
At times there are almost 100 people in the tally room.
A scrutineer has the right to challenge the admission or rejection of any ballot paper at the scrutiny. The grounds for a challenge may be the formality or informality of the ballot paper. This is done by saying the word ‘challenge’ as the official examines the ballot paper. At no stage is a scrutineer allowed to touch a ballot paper.
All “challenged” ballot papers are set aside to be examined by the DRO, who examines and decides the formality of all challenged votes as well as the formality of all votes set aside as “informal” during the fresh scrutiny. This ensures a consistent approach is applied to determining whether a vote is accepted or rejected from the count.
The scrutiny of ballot papers has two stages:
- an initial formality check, where votes that do not satisfy certain criteria are excluded, and
- a subsequent examination of those votes that pass the formality check to determine which candidate has been elected
To help decision makers correctly identify ballot papers as formal or informal, there are:
- two formality tests that must be applied to all ballot papers,
- five principles that must be applied to every ballot paper that passes the initial two tests, and
- a set of guidelines that underpin these principles.
For further information on the formality of votes, refer to http://www.aec.gov.au/Elections/candidates/formality.htm
The two tests before progressing through formality checking. Failure of either of these tests will result in an informal ballot paper and no further formality checking will be required.
- Is the ballot paper authentic?
- Does the ballot paper identify the voter?
The five overarching principles that must be considered when interpreting the numbers on any ballot paper that has passed the initial two tests are:
- Start from the assumption that the voter has intended to vote formally
The assumption needs to be made that an elector who has marked a ballot paper has done so with the intention to cast a formal vote.
- Establish the intention of the voter and give effect to this intention
When interpreting markings on the ballot paper, these must be considered in line with the intention of the voter.
- Err in favour of the franchise
In the situation where the voter has tried to submit a formal vote, i.e. the ballot paper is not blank or defaced, doubtful question of form should wherever possible, be resolved in the voter’s favour.
- Only have regard to what is written on the ballot paper
The intention of the voter must be unmistakeable, i.e. do not assume what the voter was trying to do if it’s not clear – only consider what was written on the ballot paper.
- The ballot paper should be construed as a whole
By considering the number in each square as one in a series, not as an isolated number, a poorly formed number MAY be recognisable as the one missing from the series.
At the end of each scrutiny the number of valid votes for each candidate and recorded and compared against the original count. Any changes of informal and formal vote totals are recorded and the AEC system is updated with the adjusted totals.
At the end of the whole ‘fresh scrutiny’ process 4,131 votes were deemed to be informal and 73,688 formal votes accepted for the Division of Indi.
As well as ordinary and pre-poll votes cast within the electorate, there are also absentee, provisional, early vote pre poll and postal votes. These are known as declaration votes.
An absent vote is a vote cast by an elector out of their home division but still within their home state or territory on election day.
A declaration pre-poll vote is a vote made at a pre poll voting centre outside the electorate where the voter is enrolled.
A postal vote is an application made to the AEC to vote by post for various reasons.
A provisional vote applies in the following circumstances:
- the elector’s name cannot be found on the certified list (roll of electors)
- the elector’s name is marked off the certified list as already having voted
- the elector is registered as a silent elector (i.e. his/her address does not appear on the roll.)
Ballot papers issued with declaration votes are inserted into envelopes and sealed. At tally rooms all round Australia the declaration envelopes are sorted by electorate, and the number received for each electorate is recorded. Divisional staff enter these figures for electorates into the national computerised Election Management System, which in turn updates the Virtual Tally Room (VTR) on the AEC website.
In this election 2,671 absentee, 1,052 provisional, 4,790 pre-poll and 18,959 postal votes were recorded as being issued for the division of Indi.
In the days following Election Day, a ‘declaration vote exchange’ is carried out between the divisions within each state and territory, where declaration votes are physically passed on to the relevant division. Declaration votes received on behalf of divisions in another state or territory are sent to that state or territory and then are distributed to the relevant divisions. Once the declaration votes are received in the home division, the counting of these votes can begin.
The preliminary scrutiny of declaration vote envelopes determines which declaration votes are admissible and can proceed to further scrutiny. The preliminary scrutiny of early and postal declaration vote envelopes can begin on the Monday before Election Day. This assists the DRO to begin the further scrutiny of these types of declaration votes promptly after Election Day.
Early and postal declaration vote envelopes are checked to ensure they have been signed by the voter. For early declaration vote envelopes, names are marked off the certified list of voters. Any envelopes requiring further investigation will be put aside until after the close of polling.
Electronic Certified List (ECL) devices will be used to assist divisional staff in conducting preliminary scrutiny.
Section 228(5A) of the Act requires the AEC to wait for up to 13 days after Election Day for any outstanding postal votes. These votes are included in the count if they were cast before 6pm on Election Day and are received within 13 days after the close of the poll. For this reason, the counting of postal votes is an ongoing process for up to 13 days after Election Day.
A postal ballot paper will be accepted for further scrutiny if the DRO is satisfied:
- that the elector is enrolled (or entitled to be enrolled) for the division,
- that the vote contained in the envelope was recorded prior to the close of the poll (which is done by checking the date the witness has signed),
- that the signature on the postal vote certificate is valid, and
- that the signature is correctly witnessed.
Following the removal of signature checking requirements from the Act, the AEC implemented an authentication checking system to confirm that the person who submits a Postal Voting Application (PVA) is the same person who completes the Postal Voting Certificate (PVC). This is to be done via a security question and answer process, with signature checking as a back-up. PVCs must not be rejected if the security answer is incorrect or not provided, as it is not a mandatory field and does not invalidate the PVC.
If there is doubt that the signature on a PVC is that of the elector, the DRO must check the signature against the most recent enrolment record (if any) of the elector’s signature available
The requirements for the preliminary scrutiny of early (pre-poll), absent and provisional votes are essentially the same as those for the preliminary scrutiny of postal votes.
A declaration vote will be accepted for further scrutiny if the DRO is satisfied:
- that the elector is enrolled (or entitled to be enrolled) for the division
- that the certificate or declaration has been properly signed and witnessed.
Votes will not be admitted where:
- the elector was provisionally enrolled at 17 years of age but had not turned 18 on or before election day
- the elector’s claim to be enrolled was received by the AEC after the close of rolls for the election.
A vote will generally be admitted if clerical, computer error or omission was responsible for the elector’s name or address being excluded from the electoral roll.
The preliminary scrutiny of declaration votes occurs away from the main counting area of the tally room. Once declaration votes pass the preliminary scrutiny they are parceled up and taken to the counting area to be counted.
The parcel of accepted declaration votes are extracted in the following way.
The envelopes in the parcel are put through an automatic envelope opener in smaller batches.
Each batch is given to an electoral official who places them face down on a table. No voter details can be seen and the ballot papers are extracted and also placed face down on the table, so voting information can also not be seen. This ensures that a person’s vote cannot be identified in any way.
On completion of each batch, the envelopes and ballot papers are placed back into a central location in separate boxes. If an envelope is empty or missing a ballot paper a record is made of a missing ballot paper.
Once all ballot papers in that parcel have been extracted, only then can the counting of those votes commence in the following manner:
- Sorted in piles based on first preference.
- A preliminary formality check of each pile is made, checking that all boxes have been numbered sequentially.
- A count of the two main candidates is conducted.
- The count of ballot papers for all other candidates is conducted.
- Preference allocation count of other candidates then conducted. The numbers are recorded on the AEC form.
- Then a fresh scrutiny of all ballot papers is conducted as per the system outlined above.
After completion of each parcel the divisional staff then enter the totals for that parcel into the national computerised Election Management System, which in turn updates the Virtual Tally Room (VTR) on the AEC website.
The counting of 15,272 declaration votes , of which 501 were deemed to be invalid, has taken approximately five days.
In the 10 days since the election, every one of the 93,091 ballot papers cast in the House of Representatives has been examined in detail, checked to be formal or informal by AEC officials under the watchful eyes of numerous scrutineers, and finally we are close to the result.
The people of Indi can thank our own Sir Isaac Isaacs for helping to establish a system that strives to make every vote count.
more Indi seat reports here