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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  3. Surely there is some legal principle on how unclear votes should be allocated? If there is no clear intention to vote for a candidate then the vote should be considered informal rather than being allocated to a candidate either as a donkey vote or via any other allocation method. If Fran Bailey’s representatives seriously tried to argue that a vote for supercar drivers is a vote for her then those words should be quted against dear old Fran in any subsequent elections.

    Who was the State returning officer? This seems odd.

  4. You can only hope that this is not a nuisance challenge and that the ALP has compelling grounds. The example quoted, if true, certainly is bizarre but were there enough of them. The voters will not forgive an unnecessary by-election.

  6. The compelling grounds for this petition would be that the ALP scrutineers were aghast, horrified and totally flumoxed by the decisions made by the AEC’s Australian Electoral Officer for Victoria, Daryl White, who, during the official recount of informal ballot papers, overturned many of the formality decisions made by the long-standing and highly respected Divisional Returning Officer for McEwen, Bob Berglund, in order to favour Fran Bailey.

    Note that Section 268(3) of the Commonwealth Electoral Act 1918 makes it clear that decisions on formality should favour the franchise by admitting votes where the voters intention is clear. Mr White seems to lack familiarity with this provision.

    This is not a nuisance petition if the ALP scrutineers have done their job and made proper records of the offending decisions by Daryl White for the purposes of the proceedings. Our democracy will be enhanced if the High Court follows the intention of section 268(3) and favours the franchise in its rulings, making it absolutely clear for future elections which way such ballot paper formality disputes should lawfully be decided.

    If this means Fran Bailey loses her seat as a consequence then we the people are the winners – not just the ALP.

  7. Well note that the AEC site says about the voting process (http://www.aec.gov.au/Voting/How_to_vote/Voting_HOR.htm):

    “An informal ballot paper is one that has been incorrectly completed or not filled in at all. Informal votes are not counted towards any candidate but are set aside.

    A House of Representatives ballot paper is informal if:

    * it is unmarked
    * it has not received the official mark of the presiding officer and is not
    considered authentic
    * ticks or crosses have been used
    * it has writing on it which identifies the voter
    * a number is repeated
    * the voter’s intention is not clear

    Note that if a House of Representatives ballot paper has all squares numbered but one then it is assumed that the unmarked square constitutes the last preference and the ballot paper will be deemed formal.””

    Seems pretty clear to me that the ballot paper described to the Age should be clearly deemed informal – how clear is the voter’s intention if all the candidates names have been crossed out? Wonder what other similar decisions were made on the recount?

  8. this is a serious issue
    i understand that there were many votes ruled out because of “technical” concerns over handwritting
    ie if the loop on a six did not fully complete the circle then it was ruled invalid
    the same as if the horizontal line on the figure 4 did not cross the upright line it was ruled out
    or where a number 8 was ruled out as the two circles did not meet when viewed under a magnifying glass
    these were despite all other squares having a numerical sequence in them

  9. Does the HC have to make it’s decision by Feb 12 – when Parliament is due to sit? You would think not. Therefore, what happens on that day? Is Bailey sworn in, only to potentially be kicked out again some days/weeks later? Or is she considered to not be a member of parliament until this is completely confirmed?

    This is all getting very messy

  10. You would think that, if three counts of the vote led to different results, it’s pretty clear that it is almost impossible to determine the will of the electorate.
    Another count would almost inevitably lead to another result (at least in terms of votes cast).
    There is no way to determine the will of the electorate in this case except to ask them the question again.
    I would tip Rob Mitchell romping home. The idea that this kind of byelection goes against the complainant has held true where the complaintant was a member of the Opposition party, not the ruling government.

  12. Possibly a way to make some quick money if Fran gets into parliament and is then removed.
    Section 46 of the constitution:
    any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
    Section 48 says that members are to be paid 400 pounds p.a. until further notice, I guess the equivalent today is about $40K per day

    Unfortunately, I don’t think this includes members unseated by the court of disputed returns.

  13. Yes, Bailey is an MP until the court decides otherwise.

    Personally, I don’t have a problem with the Supercar ballot paper. The boxes have been numbered correctly and scribbling on the ballot paper is permitted, so long as it doesn’t identify the voter.

  14. DW @ 11

    But the candidate’s names had been struck out. That could be argued from many standpoints to be a clear indication that the voter rejected the choices on offer and did not intend to register a vote for any.

    And this one paper is not sufficient to carry a case to the CoDR. I can’t wait to see what alleged infamies of electoral (mal)adminstration occurred. Roll on the transcripts!

  15. So according to the ALP, Fran Bailey was squealing and had sour grapes when she called for the recount.

    Maybe she could now point out that sometimes it takes one to know one.

  16. I can tell you a 100%, that there where 100’s of votes received and counted for both sides with no offical mark…

    “A House of Representatives ballot paper is informal if:

    * it is unmarked
    * it has not received the official mark of the presiding officer and is not
    considered authentic
    * ticks or crosses have been used
    * it has writing on it which identifies the voter
    * a number is repeated
    * the voter’s intention is not clear”

  19. G – it is not unusual for polling officials to forget to initial the ballot paper. This is naughty but not necessarily fatal.

    Note the “and” in your quoted informality rule, it does carry meaning:

    “it has not received the official mark of the presiding officer and is not
    considered authentic”…

  21. Question on Section 46 of the consitution: So does any person means any person? There are 21 million Australians. If we did find someone to could be sued under the rules can we all sue? That would be a big chunk of change.

    Not that Bailey would be invalid until the courts rule otherwise so she is safe in that respect. Most likely it will be a re-ellection in that seat if there are enough questionable votes on either side.

  26. Base salary for a Federal MP is $127,500 pa and some of them are doing it hard! I don’t begrudge them their money, but where’s their sense of reality?

  27. I have suggested (over at ozforums) starting up a charity to support them in their hour of need….after all, they did so much for us.
    I reckon if we pass the hat around, we should be able to send Tony a few bucks, a few used tissues and some comb fluff.

  28. Is the complaint purely about whether the 640 disputed ballots are formal or not, or have they found enough electoral role irregularities to help with the case? Of course there can be the standard ones of booth workers marking off the wrong people so it looks like they end up voting twice, or an elector pre-polls but dies before the end close of polls (my understanding that is valid).

    I’d like to see all the details, but then again that is what the Court of Disputed Returns does.

  30. Fran Bailey made many unsubstantiated claims during the count. When she won none of these were mentioned again..all her charges were dropped and silence reigned.

    It seems that the court might now order a “re-election”.. to use the term employed in the Greensborough by-election of 1973..in which case the ALP has all the advantages,,,some young voters were unabe to vote due to the closing of the polls,and they will now be on the rolls…a huge plus for Labor..and Rudd can give all sorts of goodies to the electorate..and make a series of visits himself.
    Of course the Libs may benefit from the absence of Little John Howard…it’s a real test for Nelson’s famed charisma..
    Fran better get set for retirement !!

  32. Soooo, it could be 84 seats to the ALP then, after all. We might have to dust off the list of predictions and grab back certain gold medals and reallocate bragging rights all over again, hmmm?

    Oh goody.

    Not that my prediction wouldn’t still be wrong. But I’d be very slightly less wrong if Fran goes under.

    btw the other Bailey, Michael, has taken a job at the Nine network… weather on Friday and Saturdays, climate change roundsman the rest of the time. (Thought you’d like to know that Rates Analyst, if you haven’t heard already.)

  34. To declare the election in valid, there needs to be enough questionable ballots to material effect the outcome. So that means that there has to be at least 13 votes out of 640 which are incorrectly ruled on. That is just 2% and that is probably not going to be too hard to prove, so that is why I would say we are heading for a by-election.

    It is far less likely that they will rule the ALP candidate elected than either a by-election or no change in the result.

  38. It might not be a by-election. If the challenge is just on the 640 votes, the court can just rule on them and decide if any can be admitted to the count. Then it would determine the winner. That happened in Nicklin at the 1989 Queensland election when the Court of Disputed Returns decided whether a contested two dozen ballots were formal or not. The Court admitted some to the count which resulted in the initially victorious Liberal MP being replaced by the National candidate.

    In NSW in the 1970s, a Court of Disputed Returns clarified state electoral law on what was a formal vote. It clarified that a vote where the number was outside the voting box was informal, where every other state would have treated it as formal. It is only recently that NSW changed the electoral act to overrule that case law.

    If the McEwen appeal is as reported, it is about whether the count was correctly conducted, not the election, so the Court has the power to consider whether the correct person was duly elected and there is no requirement for the election to be reconducted.

  40. If we are doing food parcels for poor, relevance deprived Libs, then a bottle of specially brewed Dr Growlers “Bulls Hit Rejuvinating and Restorative Serum”, might do the trick.

    The label says it brings colour to your cheeks and restores the fire in the belly.

    However, it is repository!

  46. Jen,

    Yeah, it wasn’t our best outcome. Unfortunately, we used a smidge too much “malice of zombie” and the reult is there for all to see.

  49. GG #47, what a cynical, calculating, malevolent,selfish plot this is, and that’s without descending into hyperbole!

    They don’t give a damn about the state of the economy, the “battlers”, previously so dear to their hearts, or the “mums and dads”. They actually contemplate taking steps calculated to damage the economy so as to give themselves ammunition to use against the ALP.

    A pox on their house and a 100 years in opposition.

  50. FS
    you seem su5rprised.
    they ahve NEVER given a damn about the battlers or the less-than-wealthy in this country.
    100 years be damned: Oblivion.
    And I’m saving the hyperbloe for when they do something out of character.

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