A big caveat for this article – I’m relying on news reports. And whilst there are multiple sources, this is not a substitute for a proper election observation.
But nevertheless, it does seem that many of those UK citizens who live overseas and who wanted to vote in the European Parliamentary election did not receive their ballot paper in good time and also that many of those EU citizens who were in the UK and wanted to vote here were prevented from doing so.
Let’s take each of those situations in turn. First up, UK citizens voting from abroad.
The law is that to be on the electoral role a UK citizen has to be normally resident at a UK address or have left to live overseas within the last 15 years. In the latter case, a person will retain a place on the electoral roll in the council and constituency they last lived in.
Until a few years ago, ballot papers would not be sent overseas and such electors would need to appoint a proxy – someone to vote for them who lives in the UK. But now they can be sent abroad, but at the risk of different postal services – you take the chance of the ballot paper being stuck in the post in either direction. But there is a good faith argument to be made. The council sending out the ballot should be doing so early enough in the process to give the voter every chance of receiving it and returning it in time for it to be counted. In this election a number of authorities sent out postal votes very early – at a time when the government was still claiming the election might be cancelled. So it was perfectly possible to ensure overseas electors had the maximum chance of casting a vote. However it is alleged that some councils did not send out ballots to overseas electors in good time.
I suspect that this is going to be a matter that will have to be investigated on a council by council basis. They all keep records as to when each batch of ballots are sent out and so this will be relatively easy to do.
I’ll come back to what could be done for the future, but a number of current MEPs have suggested that returning officers accept any ballot that is received before the count begins on Sunday. That might be a sensible compromise.
There are also the cases of EU citizens living in the UK. The law says that an EU citizen can choose to vote where they live or in their country of citizenship if the two are different. But they can only vote once and the country concerned must have a process to enable a challenge in the case of an accusation of multiple voting.
So in the UK, an EU citizen must first be on the electoral roll – as a UK citizen has to be. The UK interpretation of the ‘challenge’ rule is to require them also to fill in a form (known as UC1 or EC6) to formalise their choice to vote in the UK and renounce their right to vote in that election in their country of citizenship. A couple of former Lib Dem MEPs – Andrew Duff and Sarah Ludford – have suggested this is a case of ‘gold-plating’, ie making a simple requirement far more complex than it needs to be.
What appears to have happened is that some EU citizens were not made aware of this requirement, including some who specifically asked about a form but were told by their council that they were ok to vote and didn’t need to fill it in. Others were sent the form far too late to return it by the deadline of 7th May. And there appear to have been some presiding officers who got confused about the rules and mis-informed legitimate voters, telling them they could not vote.
The Electoral Commission has laid the blame squarely with the government. They said that the government knew about this confusion but, because of the intention to leave the EU before these elections, chose not to do anything about it. And once participation became the only option, it was too late to do anything about it.
So what can be done? To be honest, very little that can give votes to those who missed out. The principle in the UK is that elections are only ever overturned or re-run in cases where it can be proved that the result was changed by fraud or official failure. That is a pretty high bar and almost impossible to clear in an election spread across regions of the UK.
But, the case for legal action does not begin and end with a re-run. Managing elections is an official duty and so there may be a case for investigation to see if that official duty has been breached. The standard in such cases is pretty low – that an official ‘is guilty of an act or omission in breach of that duty’ (RPA 1950 s.32 as amended). So if it can be proved beyond reasonable doubt that a returning officer or registration officer failed in their duty to properly manage the process then they run the risk of a fine or even jail time.
I’m not going to suggest whether any individual should be taken to court. There are those (including Democracy Volunteers and the electors affteced) who know more about each case. But if such breaches did occur in an election being observed by a recognised group then you could be sure that they would be highlighted in the observation report and recommendations would be made for the future. Such recommendations might include:
- Ensuring that all presiding officers, electoral registration officers and returning officers are properly trained and resourced for the specific election they are managing. Presiding officers should have up to date manuals for the right election to hand.
- Ending the haphazard nature of local decision making for national elections. There should be a defined timetable managed by the Electoral Commission with which each returning officer must comply.
- Local councils should understand the precious nature of the elections they are managing. Giving incorrect information to electors – even if done unintentionally – should be regarded as a serious failing.
Above all, these reports show that UK elections are not perfect. We might not have the same problems that exist in other countries, but we do have issues and we should acknowledge the fact and seek to address them as soon as possible.