Play it again, Fran

Two months after the November 24 federal election, the fun is still not over: Labor’s candidate for McEwen, Rob Mitchell, has launched a challenge against his 12-vote defeat at the hands of Liberal member Fran Bailey, who won on a recount that overturned Mitchell’s initial seven-vote win. The disparity between the two counts can essentially be put down to differing rulings by the divisional returning officer, who oversaw the first count, and the state returning officer, who adjudicated on 640 disputed ballots. Ben Doherty of The Age reported on Labor’s complaints after the poll was declared on December 18:

The Age was told that on one ballot paper, an elector had crossed out the names of all the candidates, replacing them with the hand-written names “Mark Skaife”, “Craig Lowndes”, “Todd Kelly” and other V8 Supercar drivers. The voter then donkey-voted, numbering the boxes alongside one to eight downwards. The numbers favoured Ms Bailey on preferences and, after being ruled informal in the initial count, it was contested by the Liberal Party and ruled a formal vote for the recount … Most of the disputed ballots are in question because of hard-to-read numbers, or “1”s which might be ticks.

The High Court now has the power either to overturn Bailey’s win, or declare the result void and initiate a by-election. For what it’s worth, the Electoral Act states that the court “must make its decision on a petition as quickly as is reasonable in the circumstances”.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

76 comments on “Play it again, Fran”

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  1. Jen Says:
    January 31st, 2008 at 1:06 pm
    Does it bring the dead back to life?

    Greensborough Growler Says:
    January 31st, 2008 at 1:07 pm
    Remember Phillip Ruddock?

    zoom Says:
    January 31st, 2008 at 1:50 pm
    Do I have to?


  2. This will be interesting to watch as I am told their is a case to answer. Overall the count was much better conducted the the Western Meto Count in Victoria by the VEC. There the result of the election changed significantly with 150 votes going missing between the count A and count B as well as in the distribution of votes. The total number of votes counted should not change at all and certainly not as much as 150 votes.

    If Nunawading is a case to go by the Fran will be entitled to sit until the court rules. I know the ALP looked very carefully at the results and the evidence before deciding to challenge the results.

    On the another issue The AEC has not published the detailed Below-the-Line preference data nor have they provided a reason or response as to why. We will be submitting a FOI request in February to ensure that this information is published and the conduct of electronic counts remains open and transparent. This is a serious blight on the AEC’s record which is much better the the VEC’s. Two main issues are of concern the refusal to publish the BTL preference data and poor quaility information on the number of postal/prepolling ad absentee ballots issued.

  3. Brian McKinlay @30: If there is a by-election it will be on the same roll which is ot under challenge.

    Will From Kooyong @ 21 and Bert @ 20: The main criteria is that the voters intention is clear. Writing o the ballot papers is OK as log as it does not disclose the identity of the voter. I remember the NO DAMS protest and I often write a short message or place and smiley face on my ballot if I am voting in a booth where I will be scrutineering.

    Kevin Rennie @ 4. I can assure you this is not a nuisance challenge. Whilst a opposition party would always challenge a result A governing party would need to think carefully and be sure that their case has merit. This is the case in McEwen

    I agree that when a recount of a ballot produces a different results to teh first cut ad the total number of ballot papers coated differs significantly between the two counts or the umber of ballots under dispute is greater then the margin of success the there should be a third count to verify that mistakes were not made in the second count. The overall result should be confirmed at least twice. This very much is my concern also about the Western metropolitan District in Victoria where the total number of votes changed significatly bad the ALP dropped by 600 odd votes in the allocation. The winning margin was less the 150 votes.

  4. the Mai difference as I am aware between the West Metro Count and McEWe is that in West Metro teh problem was with the way the count itself was conducted ad lack of due diligence o behalf the the VEC.

    I McEwen it is a question of interpretation of the validity of the vote. The total number of ballot papers recorded between count A and count B did not vary.

    I agree with Antony Green’s comment’s above that the court will be asked to adjudicate on the validity of the excluded votes and the rule o the outcome of the election.

  5. The primary consideration really should be whether the voter’s intention was clear. It shouldn’t matter if certain digits are badly written as long as they are close enough and the entire sequence is present and obvious (IMO we should have _optional_ preferences, but that’s another debate, and the current mandatory system requiring all numbers actually makes it easier to determine the validity of a vote). Even if you take a harder line on handwriting, if the doubtful preference wouldn’t make a difference (e.g., your ‘4’ was no good, but your ‘1’ is clear and was for one of the top two candidates) then it should be declared formal.

    If the candidates’ names are crossed out and replaced by racing car drivers’ names then it’s clearly informal (actually, the voter’s intention in this case _is_ clear; he/she did not take the election seriously). The example above of a vote with all numbers present except ‘1’ should be declared informal. The ‘1’ is obviously the most important number and if you leave it out no one can sure of your intention.

    The overriding consideration should be whether a common-sense interpretation yields an unambiguous vote.

  6. surely the test of the validity of a vote should be can the voters intention be
    identified….. I think a vote should be formal if a clear first choice of candidate
    can be seen…. as preferences as long as choices can be seem eg 1,2.333
    shows clear second choice

  7. I love a good artistic informal vote. The Supercars one is a classic, especially if it really was ruled formal as reported.

    At one council election I scrutineered a voter put numbers in boxes down the wrong side of the page then did a fancy loop-the-loop thing with lines and arrows such that the numbers pointed to boxes. It was an absolute mess and would have taken several minutes at least to decipher; the returning officer decided not to bother.

    In Tasmanian Legislative Council elections to vote formally the first three preferences have to be numbered (a rather strange requirement for a single-seat system, but there you go). One seat had eleven candidates. A voter numbered the squares in donkey order as follows: 1-2-3-10-20-30-40-50-60-70-80. It was ruled formal.

  8. 69

    And on one ballot paper in my booth in Fraser had a stunningly well-executed drawing of a donkey. It must have taken a few minutes to do.

  9. SenateWatch:
    “…the count was much better conducted the the Western Meto Count in Victoria by the VEC”

    Still harping on about that? In the words of a great teacher of mine: “Build a bridge, and get over it!”

  10. Going by the example shown above in Williams post I would say that that ballot most certainly should have bee ruled informal as the voters intention to vote for the printed candidates was most certainly unclear.

    Like it or not the FEC voting experience is very much relevant to the conduct of this ballot. It highlights may of the issues that arise when a recount produced a different outcome and votes go missing. I sat though the Nunawading case and I have some insight into the sought of question that are raised. I have also participated in the various discussions on should the election results be contested. Western Metropolitan was a close call, there were may question left unanswered. I the end it was a decision not based o the likelihood of a reversal but equally as much as the political fall out. The ALP has not challenge the McEwen result lightly. It is backed by solid evidence and valid issues of concern.

    Again I am of the belief that the election, if disputed, should be counted until the same overall result is confirmed at least twice. Mistakes can happen in a count. They can occur not only in the first count but also the second count. We know this from the recent Victorian experience.

  11. In the Nunawading case there was a lot more at stake. Balance and control of the upper-house. It was around that time that the ALP adopted a reform policy as opposed to just abolition. A policy that I had a lot of involvement in developing. Whilst all the focus was on Nunawading there were issues related to the conduct of the Monash Province election that never received any media coverage. Namely the “Save Price Henry’s” hospital ticket which was a Liberal front ticket giving the Liberal Candidate 1 and the ALP 2. This was the tactic that started the “Ticket war” yes it was legal as was the later Nunawading anti-nuclear ticket. Fun and games on the campaign trail and the ballot box

  12. Learn from history and correct the mistakes made in the past. The Victorian election was a good example as how Not to conduct a public election. There were more problems with the 2006 Upper-house elections then the 2007 Federal election.

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