FOI and Ballot Papers

Recently I made a discovery that surprised me.

I had always believed that if you wrote anything on a ballot paper other than an X in the box, then this would mean that the ballot would be rejected (or spoiled) and your vote would not be counted. I get the impression that this is what most people think.

However, after consulting the Representation of the People Act 1983 (which is the principal piece of legislation governing UK elections – although it took a surprising amount of effort to establish that) I discovered that this was not the case:

In fact, this is what Schedule 1 of the Act says:

(1)Any ballot paper—
(a) which does not bear the official mark, or
(b) on which votes are given for more than one candidate, or
(c) on which anything is written or marked by which the voter can be identified except the printed number and other unique identifying mark on the back, or
(d) which is unmarked or void for uncertainty,
shall, subject to the provisions of the next following paragraph, be void and not counted.

(2)A ballot paper on which the vote is marked—
(a) elsewhere than in the proper place, or
(b) otherwise than by means of a cross, or
(c) by more than one mark,
shall not for such reason be deemed to be void if an intention that the vote shall be for one or other of the candidates clearly appears, and the way the paper is marked does not itself identify the voter and it is not shown that he can be identified by it.

This means that, so long as your voting intention is clear and you don’t identify yourself, you are free to write something additional on the ballot paper if you wish. I’ve since established through correspondence with those who should know (although not yet, I should stress, the Electoral Commission) that my understanding is correct.

So what, you may say? Even if it’s allowed, writing a message of defiance to the Government, is still going to be a futile gesture isn’t it? The BBC’s 2010 FAQ on What can you NOT do in a polling station?, while – interestingly – getting the law wrong, rather condescendingly gives the usual view on the futility of writing a message

These kind of deliberately spoiled ballots are part of the British political tradition, are termed “rejected votes” and are included in the overall turnout. However, those wishing to vote for one of the candidates should avoid writing comments. It may confuse the counters and lead to your vote being put in the rejected pile. And however wise or witty a comment, it’s unlikely to make much impression on staff who will be frantically trying to count ballot papers.

 

But what if it was not just you doing so?

What if there was an organised mass campaign to write a particular phrase as a way of highlighting a single issue?

There are limited ways for citizens to send a clear message to politicians and ‘the authorities’ and it occurs to me that – while it might not be popular with those counting the ballots – a mass exercise in writing on ballot papers might be a very powerful one. As I say I’d always assumed that the choice was between voting, and spoiling one’s ballot in protest – but it seems you can have your democratic cake and eat it.

One big stumbling block though is how would the public and the media know how many people had written the campaigning message. If a million people have written it, it’s still not worth very much if no one knows about it.

Returning Officers are obliged to report on the number of Rejected Ballots, but they do not have to report on the number of ballots with something written on them, if those ballots were nonetheless accepted. In fact, Returning Officers appear to have little discretion to report anything of this sort.

It then occurred to me that ballot papers are public records held by a Public Authority and are, presumably, subject to the Freedom of Information Act.

This then raises a number of questions:

  • Would it be a legitimate FoI request to ask for the number of ballots with a particular phrase written on them?
  • Would it need to be a separate request for every Parliamentary Constituency?
  • Who would be the responsible Public Authority be – returning officers or the Electoral Commission?
  • Would the requests be likely to be turned down on cost grounds?
  • Would it be reasonable to make the requests in advance of Election Day, not least because this would probably make it cheaper to respond to them, because the information could be gleaned as part of the Count?
  • Would the Information Commissioner be likely to rule in advance of the next Election as to how any such requests should be dealt with?

So many questions…

But worth addressing I think, as this might be an under-exploited means of voter protest and communication with those in power.

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8 comments

  1. I’m still holding out for the ‘none of the above’ option.

  2. Hi James. Interesting post. Here are my thoughts on your questions.
    I don’t think – off the top of my head – that returning officers are covered by FOI – and I think that would be who would “hold” the papers
    Assuming I’m wrong on that point, I still think the chances of you getting anything from this are slim. You would need to ask every returning officer, and you’re right that the likelihood is that it would be refused in every case on cost grounds. The Commissioner might issue guidance in advance if it was a high profile campaign, but would reserve right to decide in each case after the event. So basically – I think FOI would not deliver the mechanism you want. I also wonder whether that para from the Act is as significant as you think – you could very well argue that anything written on a paper allows individuals to be identified eg from handwriting, what they write, etc – so I suspect that anything other than a big X by your chosen candidate is going to be seen as a spoiled paper in practice. But interesting academic exercise!

  3. Firstly, your understanding of the law is correct.Provided that a) your intention is clear, and b) there is nothing on the ballot paper which personally identifies you, then you can mark it however you want. This includes voting by means of a smiley face in the box, by writing “Yes” against one candidate and “no” against all the rest, etc. And it also means that you can write whatever else you want on the ballot paper so long as it doesn’t break either of those two principles (so a rant about the politicians would be OK< but your name and address would not).

    However, your FoI suggestion isn't going to fly, unfortunately, The only information recorded at the count is the number of ballots cast (and spoiled ballots). Statistics on the number of times a particular additional phrase was added to them is not recorded, nor would it be. The aim of the counting process is to determine the number of ballots cast for each candidate as quickly and as accurately as possible. Counting something else at the same time would both slow that process down and risk introducing errors into the primary count. So it doesn't happen, and it won't happen.

    Making the request after the event will simply be met with "Information not held", in WDTK terms, because it won't be held. And making the request before the event won't help, because FoI legislation only gives you a right to information which is known; it doesn't create a right for you to require information to be researched for you.

    If an independent research organisation with sufficient credibility (and manpower) were to ask for permission to inspect all the ballot papers after they have been counted, in order to get an idea of what additional text is found on them, then I daresay that the electoral commission would agree to it. But you're not going to get the electoral authorities to do that for you.

  4. Keith Edkins · · Reply

    I believe the authority would be the Ministry of Justice, to whom the Clerk of the Crown in Chancery now reports. He it is who is responsible for storing ballot papers for a year and a day in case of legal challenges to the result. But there is the rub – the ballots papers cannot be inspected except under a High Court order arising from such a challenge. So what you are seeking is not “information held” by the MoJ. Apart from cost grounds and the likely use of the “vexatious” button.

  5. Thanks for that Paul.

    On Returning Officers, Martin Rosenbaum reckons the same, that they are not Public Authorities under FOIA.

    However, looking at an article I found a while ago on what happens to ballots after the election (http://www.theguardian.com/notesandqueries/query/0,,-1051,00.html), it seems that they then pass into the custody of the Clerk of the Court of Chancery – who I would think is covered.

    The cost point would of course still apply. The only way around that I can see is prior notification that the question was to be asked, which would make capturing the information much cheaper, as it could be done as part of the count. Doubt that would go down very well as a suggestion though!

    As to the last point, although this is not of course binding, an independent organisation with some expertise in this area gave this some thought after I emailed them and their view is that a written message would probably not mean rejection – though it would be at the discretion of the Returning Officer.

  6. That Guardian Notes & Queries link didn’t post properly. Try a bit.ly version http://bit.ly/1jdyqMC

  7. Mark and Keith, all extremely interesting and useful thanks.

  8. James

    I was one the agent for a friend who was standing for a hopeless cause as a Tory in inner city Birmingham council elections. One of the voters had written “wanker” next to his name on the ballot paper; there were no other marks on the paper. It was initially rejected but I successfully persuaded the returning officer that it was an unambiguous choice which didn’t identify the voter and got the ballot counted.

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