Polling day and the count

As 8 June approaches, Mark Heath reviews issues that may arise on Election Day itself around polling and the count to provide guidance as to how the day should be approached.

Much of the work of the Returning Officer and their team will have been done by the time that the polling stations open on 8 June. Planning will have been undertaken, checks and rechecks of paperwork and systems.

In my first article, I set out where the law relating to the conduct of the election can be found. An election is a legal process, and the law should be the first point of reference at all times. In my second article I focussed on the role of the Returning Officer and their status. Polling day and the count is where that is truly visible to all.

But there is still much to be mindful of. Set out below are some of the issues that experience has shown may arise on the day and the associated law or guidance behind them as well as any practical points that may help.

However, always expect the curve ball…..

Polling

In relation to polling stations, decisions will have already been made as to their location and published. If there is any last minute change however minor, advise the candidates and agents, and publicise widely, erect notices on any old venue or changed entrance even if the change is minor. You cannot over communicate.

The layout of the station must be convenient to the voter – the Electoral Commission publish guidance on this and include a suggested layout in their Polling Station handbook (which should be supplied to all Presiding Officers). It is suggested that those representatives of the Returning Officer who visit polling stations should have on their checklist a requirement to assess the layout from the voter’s perspective.

The equipment to be provided as a minimum to each Polling Station is prescribed within the Parliamentary Election Rules (Schedule 1, Representation of the People Act 1983), in this case by Rule 29. Note the requirement as to notices both inside and outside the Polling Station and the need to ensure the correct “Vote for One Candidate etc” notice in each compartment (polling booth) within each station. Those who have recently held elections in May need to be watchful that old notices are not mistakenly reused.

The voting procedure is again laid out in the Rules (Rule 37) and explained further in the Polling Station handbook. Where Prescribed Questions have to be asked (because there is for example a suspicion of personation) these are also laid out in the Rules and handbook.

The day to day operation of the station is vested with the Presiding Officer, including keeping order (Rule 33). Note that Rule 42 allows a Presiding Officer to abandon a poll in the case of riot or open violence. This should never be exercised by a Presiding Officer without the Returning Officer’s direct involvement. However, what to do if there is a flooding and the station has to be moved, or a fire in the polling place or an adjoining building that means you need to evacuate? Subject to all being safe, keep polling going is the prime requirement. Is there another room that can be used? Or an adjoining building? In the short term, I have used the Presiding Officer’s car as a makeshift polling station, ensuring the safety of all (or course) and the ballot box and ballot papers, ultimately moving back into the room if safe or into another building. Always remember to communicate and do so repeatedly. But keep polling running.

To pre-empt problems, as well as providing Presiding Officers with the Polling Station handbook, Returning Officers will have briefed polling station staff and provided them with contact points for the core election team on the day. It is wise to not only give the core team’s contact numbers to agents but also to have the agent’s contact details. The Returning Officer may wish to call them and ask them to intervene where their teams are creating an issue.

Do not underestimate the value or impact of the Returning Officer personally visiting a polling station to deal with a query or problem, whether raised by election staff or an agent. It is a matter of judgement, but sometimes the most trivial of issues may matter disproportionately to a candidate or agent. If the Returning Officer has personally been to that polling station, and reviewed the issue, it is much easier to reply – and to close any further debate or discussion down. It also gives the staff serving at that station support and encouragement to know that you the Returning Officer are personally and directly engaged on the issues of the day. Valuable too, of course, are incidental visits, occasioned less by any immediate problem than your desire to support the staff and get the ‘feel’ of the day around the area being polled.

As a result, I have always visited a few polling stations as soon as polling opens, particularly including any problem cases. I then stay “out” picking up issues as they arise. In parallel, most Returning Officers also appoint a number of experienced staff to tour round all the stations during the day to check them, collect any postal votes handed in at the stations and pick up any other issues. It is sensible that the Returning Officer keeps in very close liaison with them (they are his/her eyes and ears on the ground)) and this is particularly helpful in the larger rural districts.

Tellers are a frequent source of grief for the unwary. They have no official status within the campaign, nor do they feature in electoral law at any point. The Electoral Commission produce useful guidance for tellers and a “do’s and don’t’s) guide for Tellers . This also addresses the similarly vexed question of what can (and cannot) be on rosettes worn by campaigners at Polling Stations .

Following the general election in 2010, the law changed so that those in a queue at a polling station at 10:00 can receive a ballot paper (or hand their postal vote in) (Rule 37(7)). The Returning Officer will already have a process in place for managing this, but should be aware of the landscape over the day. Are there queues, are they at particular places in which case is there an issue that requires revisiting and revising plans made earlier? Or is it the operation at those stations? If capacity allows, some extra staff working later in the day prior to close of poll that can be deployed to those stations with queues can be helpful (geography permitting, as this tends to be easier in urban areas where distances between stations is smaller).

The paperwork requires mention. There is a lot but with polling stations open from 7:00am -10:00pm, there’s plenty of time to organise it. A key document is the ballot paper account, and its accuracy is critical to a successful count. Make sure those inspecting stations check with Presiding officers that they know what to do with this ready for 10:00pm.

The count

Following the awful events in Manchester, be mindful of security issues and arrangements, be clear what the venue’s plans are and consider what extra arrangements if any you should make. In liaison with the Police you may need to review things at short notice so be prepared to change and advise all that this is so. Review any evacuation procedures and ensure all are familiar with them.

The first flurry of activity will be the receipt of ballot boxes and paperwork. I strongly advocate checking the ballot paper accounts when they are being handed in 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 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 the 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 it is 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.

As mentioned previously, given the length of counts, Rule 45(3A) now states:

“The returning officer shall take reasonable steps to begin counting the votes given on the ballot papers as soon as practicable within the period of four hours starting with the close of the poll.”

Rule 53ZA states that if the Returning Officer is unable to comply with this they must within 30 days prepare and publish a statement explaining why and send it to the Electoral Commission.

Once verification is completed, check, recheck and check again, then sort and count.

During the count, the Returning Officer will of course be keeping an eye on the how all aspects of the count is running. They will have set out a physical layout as part of the plan for the count venue reflecting the approach to be followed. Making sure this is followed is important. It is easy for a ballot box to be accidentally put on the wrong pile unopened if the process does not contain steps to avoid this. The adopted systemic approach should have checks in it to avoid errors so following that system matters. 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, I would encourage the Returning Officer needs to keep an eye on the usage of smart phones, tablets and similar devices. As they can take photos they should not be in hands and not ringing out loud. Be firm with anyone seen using one in the room(s) where the actual counting is taking place. The potential for a breach, or a perceived breach, of the secrecy requirement is obvious and the consequences serious (Representation of the People Act 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 prescribed legal requirement, Rule 47 sets out the legal requirements that determine the legal requirements (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 scrutineers) 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 by this point, digits may have been transposed or errors made. Check it over and over again, 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. 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 stacked in their trays etc. for each candidate. Election agents will sometimes accept this as an alternative to a time-consuming full recount: the decision, however, is the Returning Officer's.

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 can call this, as there’s a significant element of tactics and confidence in the result at play here.

Two final points:

Media management: have staff to manage the media (in house media or communications staff are ideal) but consider how and who from the elections team will interact with them. On the night, the media will have significant down time so how will they be involved in a positive way – long shots of ballot boxes arriving being emptied, a chat with the Returning Officer all help.

Practical points: make sure that everyone in the core team, including the Returning Officer pace themselves. It’s a very long day from before polling stations open through to after the count has closed for that small team .But also in the count, make sure staff get breaks and refreshments, whatever the time is. All will get very tired, and that’s when mistakes are made.

Over the years, a simple mantra has been developed summarising the role of a Returning Officer (I think the originator who therefore deserves the credit for this is John Turner, Chief Executive of the Association of Electoral Administrators (AEA)) which I would endorse and advise should be kept in mind at all times:

• 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; and
• to maintain the integrity of the democratic system.

Lastly, I must again mention section 46 Electoral Administration Act 2006 …………..keep it in your back pocket though it does not allow you to recount the votes once a result is declared.

Good luck!!!

Mark Heath is a Consultant with Veale Wasbrough Vizards. He is also the Returning Officer for Southampton.