Fran’s our man

The Age reports that the Federal Court has ruled on Labor’s appeal against its 12-vote defeat in the Victorian seat of McEwen at last November’s federal election, confirming Liberal member Fran Bailey’s victory. The report says the court overturned a number of determinations made on individual ballot papers, with nine ballots originally admitted deemed informal and 142 that were excluded deemed formal, but the effect was in fact to increase Bailey’s margin from 12 votes to 27. The judgement can be read here.

UPDATE: Reports such as this one from Ben Doherty in The Age, monopolised by Labor sources, led to a perception the court would most likely initiate a by-election or reverse the result. However, it may be that the court proved even more liberal in its determinations than Labor had counted on: 76 previously informal votes were admitted for Bailey against 66 for Mitchell, typically on the grounds that numbers were “reasonably discernible”. Only nine votes originally admitted were ruled informal, costing Bailey two votes and Mitchell seven. Most of these involved particular numbers being used twice for separate candidates, although Mitchell curiously lost three votes which lacked official markings (presiding officers’ initials and a watermark). One much-publicised complaint by Labor involved a ballot on which the candidates’ names were crossed out and replaced with those of V8 Supercar drivers, which was admitted as a vote for Bailey. Nothing in the table of determinations included in the judgement gives any indication that this was overturned.

UPDATE 2: Fran Bailey reckons “we have reached a stage in Australia where we must insist on voter identification” at polling booths, saying “the very close result in McEwen has shown up this particular anomaly”. Can’t see how, myself.

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.

141 comments on “Fran’s our man”

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  1. HSO, think you are on the wrong thread, this one is the McEwen by-election thread. I think you want the Newspoll thread – there is nothing surreal there.

  2. I hope the Labor Party looks after Rob Mitchell before 2010, I think he’s owed a state seat or a job with one of the federal Victorian MPs.

  3. Ed, it’s not a matter of commonsense, it’s a matter of law. You have two parties backed with legal advice arguing with the Returning Officer. The number of votes involved was tiny, the case was always going to go to the Courts. Your making your comments based on reading the judges remarks, not from seeing the ballot papers themselves. You can’t say it’s human error because you don’t know what the ballot paper looks like and you don’t know the submissions made by the two parties at the time the Returning Officer made the decision. Maybe one side had a strong argument and the other had a poor one. The Returning Officers are adminstrative officer, not judicial officers. They don’t get their own legal counsel in making a decision.

  4. I never understood what all the fuss was about with the race car driver ballot paper. It’s seems pretty plain to me that it’s a legal ballot.

    Voters are allowed to scribble on their ballot papers, so long as they don’t identify themselves. So if the numbers are filled in properly then the ballot should be counted.

  5. I bet plenty of ballot papers over the years have been thrown out for this when they should have been counted too.

    54″So long as the resulting figures are intelligible the ballot-paper will be treated as formal. Some voters, having placed a number in a particular square then either realised that he or she had made a mistake or changed his or her mind. Instead of obtaining a new ballot-paper the voter has overwritten the original number with a different number. Where this has occurred and the overwritten number is clearly legible I have treated the overwritten number as expressing the true intention of the voter.”

  6. David #55

    If the voter crosses out a candidate’s name and replaces it with another name how do you know the voter’s intention is to vote for that candidate?

    I would have thought that the voter was deliberately defacing the ballot paper to make a mockery of the vote rather than expressing a preference for their vote.

    Then again that is something the judges decide.

  7. But David, if you crossed out all the names and wrote in other names, yes the numbers in boxes are correct, but is the intent clear? Having crossed out the names, is it still clear that the voter intended to vote for the candidates they crossed out. If it was just one name crossed out and that candidate was listed last, the intent can be easily inferred. Remeber there are countries that still vote as we once did in Australia, where you cross out the names of the candidates you are NOT voting for. There are states in America that still have write-in ballots, where you can write in a candidate you wish to vote for.

    As for names on ballot papers, that is not necessarily true. Courts have ruled in the past that if there is only one person on the roll with that name, it is informal. But if there are many people on he roll with the same name, then the person has not identified themselves because you still don’t know who they are.

  8. Thank you Steve at 51. I’ll just bugger off and try and figure out why probably the most monumental human challenges there have been for most of the species’ existence aren’t included in this political discourse, and how we’re going to try and address this, and what import this might have for the politics of Australia and indeed the world, elsewhere. I’m just scratching my head about why you wouldn’t want to inform yourself about something so monumentally and essentially political, and how this may effect politics in Australia and the world.
    BTW, I like the idea of Downer going to Cyprus. If anything is going to unite the Greeks and Turks in Cyprus, it’ll be Downer.

  9. BTW, I like the idea of Downer going to Cyprus. If anything is going to unite the Greeks and Turks in Cyprus, it’ll be Downer.

    heheheh Hadn’t thought of it like that, but an interesting point.

    See the Newspoll thread for a thought about the GW issue

  10. This was another change in this case where in the past initials were seen as a no no on ballot papers this judge was quite happy to accept them.

    69 “Accordingly, in my opinion, the unauthorised markings or writing on each of the three ballot-papers do not allow the voter to be identified. It follows that, there being no other basis upon which any of the ballot-papers might be considered to be informal, each of the ballot-papers is formal and should be admitted to the count.”

    One other point seemed to worry the judge in the case of close contests, too.

    85 “One matter which may require attention is whether any double voting which may have occurred was likely to have affected the close result of the election. I will give directions with a view to dealing with these issues as quickly as is possible.”

  11. Bloody hell, sorry all and particularly, William, and thanks to Mayoferal. Wanders off stage left, still shaking head, this time feeling silly.

  12. I must say that after reading this document reasonably closely twice that this judge has probably done more for the updating of the Electoral Act then anything I have seen for a long time. By deciding to take the view about ‘reasonableness’ he has allowed bits and pieces that have crept in over the years and become dogma to be examined and disguarded. The judge gets a thumbs up from me for a job well done.

  13. Antony Green
    I will of course bow to your far superior knowledge of previous cases (but will have a look at the two you mention…). However, my comment re “hanging chads” is really about a philosophical point regarding the use of the law. In this case the court has looked at the ballots in dispute and made a determination based on their re-examination. As you say, the court is empowered to do so, but aren’t we essentially just using a “higher returning officer” determination. As you point out, the Coogee case completely re-interpreted formality – I am assuming in a way that was neither intended or expected. While I understand the necessity of black-letter law in these instances, I am also reminded that (drawing a long bow, take a deep breath) that the High Court has in the past taken great leaps based on actively interpreting the intent and purpose of law (and the Constitution) as opposed to simply reading what is written on the page.

    That said, we do enter the tricky, but all too necessary, area of voter intent. I don’t dispute at all that the AEC will be happy with a greater clarification of the current laws – as it will make their job both easier (well, you’d hope so…) and less open to disputation. but I some times wonder if we lose the spirit of what’s intended by a voter in trying to interpret their every wish (although maybe I’m just reading too much into someone writing down the names of V8 Supercar drivers).

    And to HSO – noted the articles. And yes, this discussion has elements of the farcical (how many angels can fit on the head of pin etc), but it is still a not unreasonable thing to engage in – we can (and I hope will) deal with climate change tomorrow.

    Oh, and Steve, I don’t know how you thought I wanted some other form of tory victory. I was just observing that maybe the federal government wouldn’t be too keen on a by election in McEwen, especially on top of the reports they were considering not standing in Mayo, and that apparent decline of PM Rudd’s popularity (from stellar to merely human scales, at any rate!).

  14. stewart j apologies if that was not your intention but I see no good reason why Labor will not contest Mayo and I don’t think Labor will back off from contesting by -elections in any seat including Higgins or anywhere else.

    The Queensland Liberals chose not to run a candidate for Brisbane Central not long ago and were loudly condemned for their tactics, Rudd is well aware of it. Win one unexpectedly and the boot is suddenly on the other foot too.

  15. Antony @ 64

    Ouch! Rolled up copies of Hansard was it? And yes, what fun would ensue if that happened one evening in Reps…

  16. OMG, What if they started tossing cardboard cut outs of Kevin and Iguanas? Well, you couldn’t take the place seriously, could you?

  17. Is there a more detailed breakdown of the McEwen judgement in terms of which ballots were ruled in/out? Presumably Labor and Liberal each disputed a number of ballots. How many of the ballots disputed by Labor went their way and how many disputed by Libs went to them? This would perhaps reflect on the competency of the cases put by the parties and may add some fuel to the fire in the Vic Labor office.

  18. Winston, at the bottom of the ruling is a table listing each of the 643 ballots which were sent to the state electoral officer for adjudication. It indicates the ballots disputed by each side and whether the dispute was accepted by the other side (which they were quite often in Labor’s case). The columns on the right show whether the court’s ruling kept votes with Bailey (B to B) or Mitchell (M to M), ruled informal votes which had previously been given to Bailey (B to I) or Mitchell (M to I), or turned informal votes into votes for Bailey (I to B) or Mitchell (I to M).

  19. Antony, the same judge made this important point in the April 22 case that is cited in this document. Well worth getting your head around before going to the inquiry.

    9 “The result is that no section of the Commonwealth Electoral Act, nor any rule under that Act, has been discovered which can be held to give this Court of Disputed Returns the power to make such an order as is sought on behalf of the petitioner. It may be that such a power is highly necessary, and that the ends of justice are frustrated by its absence. It seems strange that in a proceeding which involves the question of the proper conduct of an election, when information is sought which exist only in the rolls and other documents in the custody of public officers, a petitioner is not entitled to the discovery that is here sought. But the remedy is in the hands of the legislature, not those of the Court.”

  20. In a nutshell, if the words (except ballot-papers) was not still in the Electoral Act then this whole thing could have been sorted out without the need for the first court case and would have been resolved much sooner than it was.

    Nobody knows why the words were put in or why they should not be taken out.

  21. Interesting that there is no mention of the 40+ incorrect ballot papers distributed by the AEC at the election. Incorrect in that McEwen voters in joint booths were given ballot papers for the neighbouring seats i.e. Scullin, Indi etc
    Surely this still leaves huge doubt as to the outcome of this particular seat.
    I think Bailey’s claims “This is a system that really has to be overhauled. I think the very close result in McEwen has shown up this particular anomaly.” is rather quite bazaar.
    She used a similar point in 2001 when her margin dropped to 1% but mysteriously never sought to confirm her views in 2004 when the margin went to 6.42%

    Eight people voted twice in McEwen in November, according to the AEC. None has been prosecuted. Ms Bailey said there was also a high percentage of absentee votes, including 2000 votes cast in one booth in a neighbouring electorate.
    Is that because the Wollert booth (where the greatest number of new housing development has occurred) was not advertised so most people went back to the Epping booth where it has be traditionally been held?

  22. Edward StJohn Says:
    July 2nd, 2008 at 9:20 pm

    Well if Mr Rudd has no agenda why should the “coalition supporters” nominate one for him enjaybee?

    If you haven’t worked out Rudd’s agenda then your pretty dam slow.

  23. Antony,

    But David, if you crossed out all the names and wrote in other names, yes the numbers in boxes are correct, but is the intent clear? Having crossed out the names, is it still clear that the voter intended to vote for the candidates they crossed out.

    You mean like if the voter filled in the boxes before deciding it wasn’t how they intended, and then rather than crossing out and re-doing the numbers (or more sensibly, getting a new ballot paper) they crossed out the names and re-wrote the candidates’ names in positions to reflect their desired order?

    Hmmm. That does give me pause for thought.

    But my basic point was that voters are permitted to scribble on their ballot paper. And it’s not apparent that scribbling over the top of the candidates’ names crosses any line in that regard.

    Remeber there are countries that still vote as we once did in Australia, where you cross out the names of the candidates you are NOT voting for. There are states in America that still have write-in ballots, where you can write in a candidate you wish to vote for.

    Well yes, things might be confusing for recent immigrants who are more familiar with other voting systems. But ultimately they cast their votes according to this system. A football fan more familiar with the Brownlow Medal system than instant run-off voting might cast his vote directly opposite to the way he intended. But there’s not a lot we can do about that.

    As for names on ballot papers, that is not necessarily true. Courts have ruled in the past that if there is only one person on the roll with that name, it is informal. But if there are many people on he roll with the same name, then the person has not identified themselves because you still don’t know who they are.

    Well that’s interesting. (I’d probably have to include my middle name to invalidate my ballot.) Actually I did use the verb identify, not name. So that means the courts have taken a very strict interpretation of what it means to identify oneself.

  24. Interesting that Bailey was a member of the government that made huge changes about whether a prisoner could vote, changed the time for people not enrolled to enroll when an election was called but couldn’t produce any worthwhile or workable electoral reform.

    She then gets involved in a court case about the power of the courts to sort out her own win and the best she can do is come up with a red herring about voters needing ID. They could all turn up with 50 pieces of ID but if the Electoral Act is still flawed then the same result will be produced following the court case after the next close election.

  25. “I think it has been a terrible shame that everyone has been put through this for eight months,” she (Fran Bailey) said.

    “And of course the costs, the costs I’m led to believe are probably around half a million dollars, and this is only of course been brought about by the ALP not being prepared the accept the umpires decision.”

    How many Workchoices mouse mats would that have paid for? 🙂

  26. 83 “the costs, the costs”

    ruawake, the court will tell us about these on Monday. Of course, the costs have not only been immense and also for the most part avoidable but the judge has sent a copy of the two judgments to the Special Minister of State and I look forward to Bailey crossing the floor to vote belatedly for new legislation which will limit these costs and delays in the future.

  27. Stewart J,

    I still don’t accept the point about comparing with the USA. There they did not have a court of disputed returns to act as a single legal back-up for the electoral authorities. And that is because in the US, there is no one authority conducting Presidential elections. The elections are conducted by counties, which is why the ballot paper and the number of elections held on the day varies from county to county. It also means there are multiple levels of county, state and federal courts as the legal appeal for election conduct. The Florida count ended up in multiple courts simultaneously, many with over-lapping authority. The Democrats were trying to force a re-count in counties where they thought they would do well, but not in other counties. That is in the end why the Supreme Court made an eventual judgement about equal treatment, along with concern about the Constutution specifying a count must be complete by a certain date.

    Compare that with Australia, where there is one court of appeal, the Court of Disputed Returns. If in one of these cases, a constitutional issue arose, the matter can be referred to the High Court for adjudication in terms of the Constitution. But in this case it was an issue of the administration of the matter. You may dislike the Court becoming a ‘higher returning officer’, but an AEC Returning Officer cannot make a ruling which stands in law. Only a Court can do that.

    In the end, the Florida count in 2000 sufferred a fundemental flaw in that the margin of victory was less than the margin of error of the counting equipment. And that margin of error was for properly serviced equipment, and it became evident in the court case that some counties had no idea that they needed to empty chad-boxes. The over-lapping nature of American electoral law has created an array of election law specialists. Our system where elections are always conducted by a single authority with a single court of appeal makes the whole process much simpler and clear cut. And our use of paper ballots makes it much easier to re-count if we have to. And 8 multiple vote in 100,000 is a tiny margin of error.

  28. Antony, it was an interesting part of the amalgamation of councils in Queensland last year that the elections held in Queensland in March this year were all conducted by the Queensland Electoral commission for the first time. A far better process than each council being responsible for running their own I think. It brings about a consistency in Australian elections that wasn’t there previously.

    I am also a firm believer that when political Parties merge as they are in Queensland presently that the Electoral Commission should oversee voting to add some level of accountability to replace the outlandish propaganda about ‘overwhelming support’ etc that is bandied around.

  29. I hope that the race-car ballot is #15. Otherwise I think it has been ruled formal, which I would find disturbing. (All of the other A R ballots either have inconsistent details, or have specific comments about multiple numbers.)

  30. #85

    Nice point, Antony. As a postscript to the lack of centralisation of the electoral process in the USA, this also applies to congressional elections. For example, there is no central authority to decide the boundaries of individual districts for the House of Reps, which is delegated to individual states. Thus, state legislatures can tweak federal electoral boundaries in order to help out their federal colleagues. This happened fairly recently in Texas, where the GOP-dominated state legislature re-drew the boundaries for all congressional seats, which had the net result of giving a big boost to the GOP’s prospects in its House of Reps seats. The Democrats contested this blatant gerrymandering, and it went to the courts – but the Dems’ case was thrown out.

    To their credit, some state legislatures aim to be impartial when deciding federal electoral boundaries – like the swing state of Iowa.

    And I’ll now return to regular programming…

  31. Antony @ 85
    I wasn’t disputing the differences between the US & Australia. I was more concerned with the need for a resort to the law rather than justice (recognising the two do not always involve the same outcome). Yes, 8 double votes out of 100k is a tiny compared to what could potentially be – and then there’s the people who maybe shouldn’t be voting but are on the roll, and those who should be on the roll and aren’t, those denied the right to be on the roll (like in Florida), and so on. In respect of the court being a “higher returning officer” this could in fact be dealt with in legislation (by limiting the reasons for appeal and access to the court) but then I would be equally uncomfortable with that. But when the court adjudicates a result in this manner some may take it as suggesting that in some way justice has been served, rather than it being a simple adjudication. Like I said, maybe I’m reading too much into a person voting for V8 Supercar drivers, but electorate intent is greater than just the electoral mechanism, as necessary and as important as that is.

    Oh, and I couldn’t agree more regarding having a single authority with a signle set of rules.

    re Kakuru @ 89 – I thought the gerrymander had been the other way around for a while, and the Republicans were just evening that one up (not fair either, but thats what happens when you allow legislators to draw electoral boundaries – Dracula & blood banks comes to mind)

  32. 90 “electorate intent is greater than just the electoral mechanism, as necessary and as important as that is.”

    Stewart J, surely the outcome in this case is saying that without the electoral mechanism being fixed then the electoral intent can only be found by using the workable bits that are available at great cost and waste of time for the community.

    The findings in this case have gone a long way to allowing the electoral intent to be determined in more electoral divisions on the actual polling night surely a large improvement just by clarifying which votes are to be treated as formal or informal.

    If two words in the Electoral Act are changed then the court cases in the future will be dealt with more efficiently and that is also a major benefit to be derived from this case.

  33. I wonder if Labor is quietly working on an Independent candidate to stand in Mayo,
    rather than run a Labor candidate. And how would the Greens go, if Labor didn’t run? Any thoughts?

    Is John Schumann still in the vicinity? It might be harder for a new Lib candidate to win the seat, given the Downer family’s profile (though obviously, the Libs must be regarded as hot favourite).

  34. Mmm.

    I wonder how many McEwen voters with handwriting as bad as mine are wondering who did those two “7’s” 😉



  35. Steve @ 91

    Of course, but my point is still that I remain concerned that we might just leave the calling of an election in the hands of a court. Perhaps I am just pondering the imponderable (is that a saying even??), but if we wish to involve voter intent then we first define the voter – we do this in the act, but then don’t necessarily encourage the engagement of the voter in being on the roll, or taking part in the act of voting (or engagement in the political process). Now I know that there will always be poeple who are engaged (those on this site for instance!) and those that will not be, for whatever reason, but if the ideal of determining the electorates intent is to be played out before the court then the ideal of electorate engagement should also be played out – who engages them, who enrolls them, who ensures they vote etc. Fran Bailey’s comment re voter ID is part of this – either a fudge on what the problem really was (the 8 of 100k double voters) or a deliberate attempt to manipulate and misrepresent that intent – indeed to disenfranchise.

    Perhaps I’ve just marked one too many politics exams (hmmm, perhaps I have…or not). Of course I am happy that the administration of the count is clarified here, and that the AEC can now include the new interpretation in its guides etc. But I am equally mildly disturbed if we think that our democracy is somehow well served by this alone.

    So we come back to “hanging chads” – the techinical deliberation on an otherwise ‘fuzzy’ process hardly leaves us in a better position. If “hanging chads” showed us nothing else, it did show that a techincal deliberation does not necessarily demonstrate the people’s will.

    But this is not to say we shouldn’t change the two words, or tidy up the act and so on…just that I think that the issue of determining the electorates will is a larger issue, equally worthy of some consideration.

  36. 97 – Albert Ross

    Ballot papers can be prepared by photocopying or even handwriting in emergencies, for example if there’s an unexpected rush of voters at a small polling booth or pre-poll voting centre, and they run out of pre-printed ballots. In those circumstances, the polling official needs to initial the ballot papers to confirm their authenticity, which apparently didn’t happen, probably because of an oversight, in the cases mentioned. Even where there is such an oversight, the ballot papers can be counted if the returning officer is satisfied as to their authenticity. In this case, the problem seems to have been that the returning officer didn’t record his decision to admit the ballot papers with exact words to the effect that “I am satisfied that this is an authentic ballot paper”, and the court took a strict view.

  37. Somewhat odder is that the court doesn’t seem to have addressed in any detail the much publicised case of the ballot paper with correct numbering, but with candidates’ names crossed out and other names substituted. This was a real borderline case, and a point on which everyone involved, candidates, parties and the AEC, would have benefited from guidance for the future

  38. Stewart J I just haven’t seen a recent report on electoral reform that is needed in Australia. For some reason I never got into the fine detail of prisoners being removed from the rolls and the effect on the yoof of the rolls closing early once an election is called. I’m sure there are people out there working actively on these issues and the next time a report breaks through into the foreground I will have a close look at it.

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