Election night terrors

Events at various polling stations on election night generated huge controversy after people were unable to vote. Bethan Evans and Emily Heard explain what it means for local authorities and returning officers.

On election night 18 constituencies faced issues at polling stations which meant some electors were unable to vote. It is possible that more constituencies will be identified. The Electoral Commission, which has a statutory duty under Section 5 of the Political Parties, Elections and Referendums Act 2000 to prepare a report on the administration of the election, has announced that it will be undertaking a thorough review into the polling station events in the affected constituencies.

In a press release it said: “There should have been sufficient resources allocated to ensure that everyone who wished to vote was able to do so”.

Under the Electoral Administration Act 2006, it falls upon the appointed Returning Officers and their deputies to ensure the guidance in the “Handbook for Polling Station Staff” (which reiterates the mechanism for the operation of a polling station set out in the Parliamentary Elections Rules under the Representation of the People Act 1983) is followed. The Handbook covers issues such as when the doors must be closed and who must be given a ballot paper.

Local authorities must keep polling areas under review and ensure that all electors have reasonable facilities for voting as are practicable in the circumstances.

Anticipated impact

The Electoral Reform Society has predicted that whilst the events of the election night may shape a reform of practice (which some say is long overdue), the overall parliamentary election results will not be affected.

The failures to act, or the omissions, of Returning Officers can, in principle, have an effect on the overall validity of elections if the act or omission affected the result.

Establishing whether the inability of some electors to vote would have affected the overall outcome will be difficult. The identity of those who were prevented from voting is not known although the Electoral Commission has already asked affected voters to contact it by e-mail.

The situation is complicated by the fact that in many constituencies simultaneous elections for both parliamentary and local seats were taking place and there will be different implications flowing from each.

What should Local Authorities/Returning Officers be aware of?

• Election Petitions:  Electors have until 27 May 2010 to issue an Election Petition against a Returning Officer for a determination on whether another election should be held in the constituency in question. It involves payment of a £5,000 fee and requires determination by two High Court judges.
• Judicial Review: Local Authorities and Returning Officers may also face challenge by way of judicial review. Grounds for challenge could be wider than failing to comply with statute, including issues such as failing to comply with a legitimate expectation and failing to exercise discretion in a lawfully reasonable way.  The underlying facts of each case may differ from one constituency to another, and so the grounds for challenge may vary. Any challenge would have to be brought within three months of the relevant act or decision.

Claims under the Human Rights Act

In addition to bringing a claim under UK law, anyone who attended a polling station before 10 pm but was unable to vote may be able to claim compensation through the European Court of Human Rights. European case law on disenfranchising prisoners established that prisoners’ rights to vote under Article 3 of Protocol 1 of the European Convention were violated on the grounds their respective EU member states had not ensured “free expression…in the choice of legislature”. Similar arguments could be raised in this context and a complainant could be awarded damages.

Freedom of Information Act 2000

Requests for information from press and members of the public should be anticipated so that they can be dealt with within the 21-day time period.

Action to take now

The position of local authorities and their Returning Officers is technically distinct. SOLACE has drawn attention to the somewhat anachronistic status of Returning Officers as independent contractors, with the responsibilities entailed such as obtaining separate insurance against risk. SOLACE also highlighted that Returning Officers will not necessarily have the hands-on knowledge of events on the ground which their electoral administrators will have.

Those local authorities, individual Returning Officers and Deputy Returning Officers affected will need to establish their respective obligations and responsibilities with regard to both the parliamentary and local elections, along with any relevant insurance arrangements in place.

At this very early stage, and without the detailed analysis of where problems occurred, what went wrong in the polling stations is likely to be of concern to both local authorities and Returning Officers.

For practical purposes the answers to the following questions may be useful for both:

• the extent to which polling places have been kept under review;
• the steps taken to ensure that electors had “reasonable facilities for voting as are practicable in the circumstances”; and
• a written and precise record of events from the election administrators in polling stations including: when doors were closed; how many voters were left outside at the time; whether those inside were issued with ballot papers after 10pm; whether all those issued with ballot papers were allowed to vote.

Bethan Evans and Emily Heard are partners at Bevan Brittan (www.bevanbrittan.com).