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Jean-Yves Gilg

Editor, Solicitors Journal

Countering postal voting fraud

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Countering postal voting fraud

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Martin Westgate QC considers the legislation and guidance attempting to create the right balance between maintaining the integrity of the ballot and encouraging participation

There is evidence that postal voting increases turnout and participation. In the 2015 general election 86 per cent of those who were sent a postal ballot pack voted as against 63.5 per cent of those entitled to vote in person.

However, the process is also said to be vulnerable to manipulation and fraud. The current framework reflects a balance produced by a series of ad hoc changes where some of the main safeguards against abuse only appear in non-binding guidance.

The Representation of the People Act 2000 introduced postal voting on demand in England, Wales, and Scotland and enabled voters to request a postal vote indefinitely. Postal voting is not available on demand in Northern Ireland where only 1.4 per cent of the electorate had a postal vote in 2015 compared to 16.9 per cent elsewhere.

Making voting easier

The 2000 Act followed the Howarth report whose terms of reference included promoting democratic renewal against a background of apparent voter apathy and disinterest. The postal vote changes were part of a package of changes designed to make voting easier and to enable flexible ways to vote.

The new regime came under scrutiny in challenges to local government elections in Birmingham in 2004. The election commissioner, Richard Mawrey QC, found that there had been widespread abuse and that the system was open to fraudulent applications for postal votes by people other than the elector, and that ballot papers could be intercepted before and after completion.

The Electoral Administration Act 2006 then introduced a requirement for ‘personal identifiers’ for applications for postal or proxy votes which could be checked against the documents returned with the ballot form. These changes were intended to reduce the risk of bogus applications.

The current rules require that applications must contain particulars including the voter’s signature, date of birth, address, and the address to which the postal ballot should be sent. If this is different from the voter’s registered address then there must be an explanation for the difference (regulation 51AA). Postal ballots must be delivered by post or by hand to the returning officer or by hand to a polling station.

The ballot paper must be accompanied by a postal voting statement containing the voter’s signature and date of birth and the returning officer must check this against the identification information provided when the application was made (see schedule 4 of the 2000 Act and the Representation of the People (England and Wales) Regulations 2001).

Notwithstanding these changes, an election court ruling on the Tower Hamlets mayoral election in 2014 (again delivered by Richard Mawrey QC) recorded concerns that the current postal voting regime still created risks of undue influence, theft, and tampering.

These comments were then picked up by Sir Eric Pickles in his report ‘Securing the ballot’ published in August 2016. He made 50 recommendations, a number of which called for more rigorous checks on identity and postal vote reform and which were accepted by the government (and seem to be part of the Conservative manifesto – see page 43).

These proposals were not implemented before the decision to call the general election. The current position is that there are substantive election offences in the Representation of the People Act 1983 that catch most types of postal vote fraud. They include personation (section 60), tampering with ballot papers (section 65), interfering with the secrecy of the ballot (section 66), false applications for postal votes and related offences (section 62A), and undue influence (section 115).

No harvesting ban

The Pickles proposals focus on reducing the opportunity for such offences to be committed. For example, at the moment there is nothing in the legislation to prevent campaigners receiving completed ballot documents for onward transmission to the returning officer or polling station. This is said to enable postal vote ‘harvesting’ and hence the opportunity to apply undue influence or to tamper with the ballot paper.

Existing Electoral Commission guidance which has been endorsed by the political parties strongly cautions against handling completed ballots but the Pickles proposals would create a statutory prohibition preventing campaigners from handling completed postal vote documents at all, subject to a limited exception for family members. The government was also supportive of a requirement to re-register for a postal vote every three years.

It is highly questionable though whether further legislation is needed to create the right balance between maintaining the integrity of the ballot and encouraging participation. Despite the attention that has been given to postal vote fraud there is little evidence of a widespread current problem and still less in general elections. In 2015 there were 481 allegations of electoral fraud of which 161 were claims of voting or registration fraud. In the vast majority of cases no further action was taken.

Martin Westgate QC is a barrister at Doughty Street Chambers

@DoughtyStPublic www.doughtystreet.co.uk

Doughty Street are providing a weekly ‘Election and the Law Update’ for Solicitors Journal. More information at: bit.ly/SJqajTd2

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