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Council Elections 2018 Part Two - the Count

on Tuesday, 17 April 2018.

The first flurry of activity will be the receipt of ballot boxes and paperwork. Checking the ballot paper accounts when they are being handed in is highly recommended...

...along with the ballot box and stationery as the first stage of the count is verification (Rule 45). The Returning Officer is required to count and record the number of ballot papers in each ballot box for each ward and verify that against the ballot papers account. In my view this is the most important part of the count process.

As the Electoral Commission say in their guidance to this part of the process:

"Verification has two main purposes – to ensure and demonstrate that all ballot papers issued at polling stations and all returned postal ballot papers have been brought to the count, and to provide the figure with which the count outcome must reconcile. You should keep both purposes in mind when conducting the verification process."

If the verification process is robust and accurate, the total number of ballot papers in that count will be clear and certain. If there is confidence in that – and transparency is critical to that – once sorted and counted, the result will have similar confidence even if tight.

But if the verification is rushed and/or the tolerance levels are not zero, the provisional result especially if its close may not be accepted as robust, in which case recounts will be called for. Take time to do this right.

Do also bear in mind that the verification is of used, unused and spoilt ballot papers (Rule 45). This is a legal requirement but will also aid the transparency, robustness of process and ultimate reconciliation of numbers.

Getting the count right is an acutely personal responsibility for the Returning Officer. The Returning Officer must pay attention to the detail, brief their staff on whom they are dependent well, guard against obvious mistakes, but then show trust and confidence in their team.

In addition, at all times during the count, the Returning Officer needs to keep an eye on the use of smart phones, tablets and similar devices. As they can take photos, they should not be in hands and not audibly ringing. Be firm with anyone seen using one in the room(s) where the actual counting is taking place. The potential for a breach of the secrecy requirement is obvious and the consequences are serious (RPA 1983 section 66).

Dealing with doubtful ballot papers is relatively straightforward as the Electoral Commission’s guidance is comprehensive. Bear in mind that this is a legally prescribed process contained in Rule 47 upon which the Commission’s guidance is based. I have the Commission’s examples printed, laminated and on the walls of the count where we adjudicate. Reference can then be made by us (and the agents) to the basis for any decision (or debate on a decision).

At all points, when you have verification numbers, and a provisional final result, have the numbers checked over and over again; never accept the first run at face value even if it adds up precisely. People will be tired, digits may have been transposed or errors made. Check it three times with different sets of eyes.

On recounts (Rule 46), a candidate or election agent (no-one else) may, if present, request a recount but the Returning Officer may refuse if the request is unreasonable. I would advocate that the Returning Officer should not offer a provisional result (and hence give the opportunity for a request for a recount to be made) until or unless they are satisfied that the number of votes for each candidate is accurate. Sometimes the request needs to be met with something being offered in return, even if it is to prove the result, so the Returning Officer may consider offering a 'bundle check' rather than a recount, depending upon the circumstances of the request. A 'bundle check' is where the papers are quickly re-examined whilst remaining in their bundles, paper clips on and rubber bands remaining around each bundle. Election agents will sometimes accept this as an alternative to a time-consuming full recount: the decision, however, is the Returning Officers based on what is reasonable.

However, if the Returning Officer has been seen to check, recheck and check again the votes and numbers and all has been transparent and clear, however close the result is, the likelihood of a request for a recount is lower. But one may still be made. The Returning Officer and only they must then decide what they will do, and there is a significant element of tactics in that call.

Over the years, a simple mantra has been developed summarising the role of a Returning Officer:

  • to see that everyone who is eligible has the opportunity to vote
  • to ensure eligible candidates who wish to are able to stand
  • to ensure that the choice of the electorate is implemented
  • to maintain the integrity of the democratic system

Lastly, section 46 Electoral Administration Act 2006 is invaluable for the Returning Officer. Whilst it does not allow the Returning Officer to recount the votes once a result is declared, it does allow them to correct an error or omission by the Returning Officer, the staff or contractors (eg printers). It may save the day!

To find out more about the upcoming Council Elections, see the first installment of this two-part series.


For more information please contact Mark Heath in our Public Sector Law team on 0117 314 5637.

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