Keeping the election clean

The general election looks set to be a very close-run affair. Oliver Sweeney looks at the steps that can be taken to minimise the risk of electoral fraud.

Electoral fraud and vote rigging are often seen as the exclusive province of certain countries south of the equator, but recent history shows us that it is just as possible in developed countries like our own.

The phrase electoral fraud is apt to cover a number of criminal offences, all of which are committed with the aim of changing the end result of a poll. Although electoral fraud is difficult to police effectively, it is estimated that between 2000 and 2006 in the UK alone around 2,000 illegal ballots were cast, and there were 42 criminal convictions for electoral fraud offences.

Concern about election fraud has increased in recent years due to the availability of postal and proxy voting. Although these methods of voting have been promoted as a way to increase voter turnout, the act of removing the polling process from the polling booth carries several fraud risks. The voting process is no longer secret, additional voting forms can be forged, the voting form can be intercepted, and a person’s vote altered. Fraud is also more common within communities where there are people who are vulnerable to deception or third party influence, such as those with limited language or literacy skills.

Electoral fraud offences include bribery, treating of a voter, undue influence of a voter, personation (i.e. illegitimately voting for someone else), multiple voting, supplying false information and making a false application to vote by post or by proxy. Aiding or abetting any of these offences is also a crime. It is also an offence for a Registration Officer, Returning Officer or Presiding Officer to breach their official duty without reasonable cause.

If you get caught up in electoral fraud, the penalties range from fines (possibly thousands of pounds) to prison sentences of up to two years.

Notably, it is the first General Election since the Fraud Act 2006 came into force. The Fraud Act is very widely drafted and would cover the situation where a false statement is dishonestly made, with a view to making a personal gain. The penalties for fraud are potentially much higher than for the electoral fraud offences.

Another big deterrent to would-be fraudsters is that, upon a complaint of electoral fraud, a Court may quash the result of an election – which is exactly what happened to two local council elections in Birmingham in 2004, when Judge Richard Mawrey decided that there had been systematic, large-scale postal vote-rigging.

Rightly, the Electoral Commission takes the view that prevention of electoral fraud is better than prosecution after the fact. There are a number of tell-tale signs for which electoral officers should remain vigilant.

As an example, in Birmingham in 2004, correction fluid was used to white-out votes for certain parties, with crosses then placed next to the names of the other candidates instead. People who turned up to vote in person were surprised to learn that they had already voted, and they were turned away. During the count, three boxes were found, containing 1,700 postal votes. Every one of these forms seemed to have been completed in the same handwriting, with the same blue pen, and every vote was for the same party.

There are also a number of simple procedures which Electoral Commission Guidance recommends should be put in place, in addition to new safeguards and duties on Electoral Registration Officers and Returning Officers which were introduced by the Electoral Administration Act 2006.

There is now a marked register of postal votes received, and Returning Officers are required to compile separate lists of unmatched postal voting statements and unmatched ballot papers. Also, postal voters have had to state their name and date of birth, and provide a sample signature when applying. These can be verified against their vote by Returning Officers, and Returning Officers must check at least 20% of postal votes (and will want to check 100% if possible).

Returning Officers are encouraged to provide the Presiding Officer at each polling station with a form on which to record details of any elector arriving to vote who is registered as a postal voter, with the voters encouraged to sign the register as evidence. Similarly, the Returning Officer should maintain a record of electors who claim not to have voted by post/proxy, although official records show them as having done so. Election officials will monitor the instances of new applications for postal votes that ask for the ballot papers to be sent to an address other than where the elector is registered.

Candidates, their election agents and polling agents may enter polling stations to vote and to observe proceedings. But they cannot interfere with the voting process, nor influence voters, and if such action takes place the Presiding Officer can ask for them to be excluded. The Presiding Officer will not allow large groups of a candidate’s supporters or detractors to gather in the environs of the polling station and the Returning Officer will not allow any campaign activity such as the display and distribution of election material to be undertaken in the polling station itself.

Voters have been urged to contact the police if anyone tries to “help” them with their postal vote against their will, or force them to hand over their postal vote. Similarly, where an incident occurs inside or near a polling station that a Presiding Officer believes may constitute an offence, they should consider calling the police.

High profile prosecutions in Birmingham and Peterborough in 2004, and the controls put in place by the Electoral Administration Act 2006, might have reduced the likelihood of fraud. The May 2008 local elections were free from major incident, although there were still 103 cases of alleged electoral malpractice reported to the Electoral Commission. However, with a General Election looming, and the outcome of a hung parliament a genuine possibility, there is surely no reason to relax our vigilance.

Oliver Sweeney is a Regulatory Lawyer at Browne Jacobson (www.brownejacobson.com).