While electoral officials will not always admit it, scrutineers play an important role in the transparency of elections.
Scrutineers are appointed by candidates as their representatives in observing the count. Scrutineers have the right to check the administrative paper work for the count, to observe all ballot papers as they are counted, to observe the checking of declaration envelopes, to challenge votes and request disputed ballot papers be tagged for adjudication. And they also play a role in spotting errors by counting staff.
If they represent one of the final candidates in the race, scrutineers perform another informal role on behalf of their candidate. Preferential voting means scrutineers want to closely observe ballot papers cast for lower polling candidates who will be excluded from the count. Scrutineers try to tally the destination preferences from these ballot papers, the flows of preferences to the final two candidates in the contest.
Since Electoral Commissions began to conduct indicative preference counts on election night, preference tallying by scrutineers has become less important. Now there are official counts that help parties know the close contests on election night. With this knowledge, the best scrutineers can be sent to the tightest counts for the post-election check count.
But what if there is no official preference count, and scrutineers don’t attend to do their two-candidate preferred estimates?
Exactly that happened in last month’s contest for Alice Springs Lord Mayor. One candidate was well ahead on first preferences. With no indicative preference count, and with no scrutineers doing their own preference counts, it wasn’t until the distribution of preferences that the leading candidate discovered he had been defeated.
The win was by 17 votes, reduced to two votes on a partial re-count, at which point demands for another count by the Electoral Commission could not be accepted. The NT Civil and Administrative Tribunal has declined to intervene and supervise another count.
Now there is an FOI request for the ballot papers, but will that be agreed to if it is just a fishing expedition with no legal standing to change the result?
The Election for Alice Springs Mayor
The table below shows the re-count result for the Alice Springs Mayoral election. After Jimmy Cocking led by around 700 votes on first preferences, he was defeated by Matt Paterson by 17 votes after preferences, the victory margin reduced to two votes after a re-count. The re-count figures are shown in the table below. Candidates have been listed in descending first preference vote order.
| First Preferences | Final Count | |||
|---|---|---|---|---|
| Candidate | Votes | Pct | Votes | Pct |
| Jimmy Cocking | 3,101 | 31.7 | 4,892 | 49.99 |
| Matt Paterson | 2,418 | 24.7 | 4,894 | 50.01 |
| Eli Melky | 1,959 | 20.0 | .. | .. |
| Marli Banks | 695 | 7.1 | .. | .. |
| Steve Brown | 559 | 5.7 | .. | .. |
| Blair McFarland | 356 | 3.6 | .. | .. |
| Aaron Blacker | 346 | 3.5 | .. | .. |
| Patrick Bedford | 240 | 2.5 | .. | .. |
| Wayne Wright | 63 | 0.6 | .. | .. |
| Angus McIvor | 49 | 0.5 | .. | .. |
The election was held on the 28th of August. A count of first preferences was conducted on election night but no indicative preference count was undertaken. The subsequent check count was also conducted for first preferences only. After the cut-off date for return of postal votes on 10 September, a full distribution of preferences was undertaken and there was surprise when Paterson emerged the winner.
In the NT News on 30 August, Mr Cocking admitted that the how-to-vote recommendations of other candidates would work against him. In the same story, Mr Paterson stated that “The scrutineers have seen some of the how-to-vote cards and [they say the votes] are all over the shop, so it’s just going to be waiting game until [the preference count] next Friday.”
Observation of the count by scrutineers was hindered by Covid restrictions. Scrutineers could be present for the election day initial count, with a limit of one scrutineer per counting table. Due to social distancing restrictions, scrutineers were not able to challenge, inspect or object to ballot paper formalities on election day, and were restricted to observing the count. According to the NT Electoral Commissioner, only one scrutineer attended the initial count.
At Australian elections, the election night tally is only preliminary. All votes must be re-checked or check counted. This is slightly quicker than the election night count as ballot papers have been bundled by first preference vote. All ballot papers are re-checked for formality and tallies by candidate are verified. Different counters, usually more experienced staff, conduct re-checks.
The re-check of votes counted on election night was carried out on 31 August and 1 September. The first two batches of postal votes were counted on 30 August and 2 September, with out of district early votes also counted on 2 September. Declaration votes were dealt with on 7 September and the final batch of postal votes on 9 September.
According to the NT Electoral Commissioner, “Scrutineers for candidates were informed by the (Commission’s ) Publications that they could attend the above counts and were entitled to challenge, inspect and object to ballot papers. No scrutineers attended the above counts.”
Mr Cocking was quoted in the NT News on 17 September saying his scrutineers had been incorrectly told they couldn’t interact with counters during this count.
At this point, anyone who has ever scrutineered for a political party will know exactly what has gone wrong. The lead candidate Mr Cocking only polled 31.7% of the votes, and second placed Paterson had 24.7%. Under full preferential voting, and knowing that the third placed Eli Melky recommended preferences to Paterson, you needed to look at the preference flows to know how close the election was.
No scrutineers were observing the count, there was no indicative preference count, so no one knew the contest was close. That’s why the result after the formal distribution of preferences came as a surprise.
During the distribution of preferences, scrutineers were not permitted to challenge ballot papers. This was a task scrutineers should have done at the check count, allowing disputed ballot papers to be ruled on before the distribution of preferences. So the count finished with no ballot papers having been challenged.
The Re-Count and Subsequent Legal Action
For obvious reasons, the NTEC agreed to undertake a re-count. How it was conducted has since been the cause for an appeal to the NT Civil and Administrative Tribunal (NTCAT).
In his affidavit to the NTCAT hearing, NT Electoral Commissioner Iain Loganathan set out his decision making on how to conduct the re-count.
The re-count was conducted in 14 September. Candidates were informed by the Commissioner on 12 September that the first preference votes for Cocking and Paterson would not be re-counted. Only votes distributed as preferences were re-examined. For reasons to do with the experience of staff employed on different days, the Commissioner was confident that all votes had been properly checked for first preferences, but was concerned there could have been errors in the distribution of preferences.
More experienced candidates and scrutineers might have challenged this decision and demanded the NTEC to re-count all votes. In Alice Springs the candidates didn’t, so the limited re-count went ahead and the winning margin was cut from 17 votes to two.
At this point demands for another re-count including the first preferences for Cocking and Paterson ran into problems.
Electoral Commissions can only conduct one re-count. Rules for a re-count were set, the re-count conducted and the winner declared.
The Electoral Commissioner had no power to conduct another count.
Having accepted the re-count rules, (it is possible the candidates didn’t understand the implication of the conditions), you can’t ask for it to be done again under different rules because you didn’t like the result.
Which left Mr Cocking only one option, an appeal to NTCAT, which acts as the Court of Disputed Returns for NT local government elections.
NTCAT has power to declare a result void and order another election, or to change the result. Changing the result usually involves examining ballot papers in dispute, as occurred with the seat of McEwen after the 2007 Federal election.
But without scrutineering, there were no ballot papers in dispute, so on what basis could NTCAT have changed the result?
The argument being made was that because the re-count of votes for excluded candidates reduced the margin of victory from 17 to 2 votes, how many more votes would be found if the first preference votes for Cocking and Paterson were re-counted?
As NTCAT was not resolving a normal civil claim, a top flight silk might have pursued the argument that the Tribunal could exercise power as a matter of ensuring public trust in the result. But the Tribunal didn’t hear that argument and seemed disinclined to conduct a judicial count and dismissed the petition.
(A side note on the idea of a judicial count. The recent Senate disqualifications under Section 44 of the Constitution all involved judicial re-counts. The High Court decides on disqualification, has adopted a set of rules on how to conduct a re-count, and then instructs the Australian Electoral Commission to conduct the re-count. But it is the High Court rather than the AEC that declares the winner of the re-count.)
Where to Next?
Mr Cocking has lodged/is lodging (not sure which) a Freedom of Information request for access to the ballot papers. If granted, he would only be given photocopies. Ballot papers do not leave the secure care of the Electoral Commission.
VCAT (the Victorian appeals body) has previously granted access to an electronic ballot paper file for Melbourne City Council elections. But I’m not aware of anyone previously being granted access to paper ballot papers.
Even if the request is granted, and even if a count of them showed a result might have been different, that still leaves no mechanism to formally overturn the election result. I’m not sure where this goes.
By the way, Mr Cocking and three of the other defeated Mayoral candidates were all elected to Alice Springs Town Council as Councillors. Paterson had only nominated for Mayor. As in NSW, but unlike in Queensland, candidates for Mayor in the NT are also permitted to run for Council.
Lessons (NOT Learnings) from the Case – Scrutineers are Important
In 1986 Neville Wran retired as NSW Premier to be replaced by Barrie Unsworth. The problem was, Unsworth needed a lower house seat. A convenient by-election was arranged by the Labor member for Rockdale retiring for some government sinecure (this was pre-ICAC).
Unsworth eventually won by 54 votes, but incomplete scrutineering on the night meant the Labor Party had no idea if their new Premier would win. It drummed the importance of scrutineering into the Labor Party, and the party built a machine that allowed senior figures like Graham Richardson and Robert Ray to appear on election night coverages with preference counts in the days before the AEC took on the task.
The Alice Springs Mayoral result harks back to state and federal politics in the 1980s before there were preference counts. Without scrutineering of preference flows, none of the candidates knew that the result is close.
If scrutineering for preferences had been done, the candidates would have known the result was close, and that would have resulted in heavier scrutineering of the check count and identified votes in dispute. There would have been less surprise in the final result and greater scrutiny of the ballot papers before the preference distribution and the re-count.
Finally there were issues of experience here.
Political parties are bodies that understand electoral rules. They would have made sure they took whatever opportunities were offered to scrutineer, even under the Covid restrictions. They would have wanted to know if the result was close so a decision could be made on tighter scrutineering.
Above all, experience plus knowing the result was close would have produced a different reaction to the Electoral Commissioner’s decision to conduct a restricted re-count.
UPDATE
The Alice Springs News has a good piece looking at the issues around the re-count. It includes further information from the Returning Officer and additional comment from Mr Cocking on information he had been given on the rights of his scrutineers.
To borrow the horribly over-used “perfect storm” metaphor, it sounds like a series of mis-understandings or incomplete information communications between candidates and electoral authorities has created the problem. Beginning with what scrutineers could do at different stages of the count, through to what was being re-counted, it seems not everyone was on the same page. (Another over-used metaphor).
I suspect that next time there is a Mayoral re-count in the NT, all the votes will be re-counted.
How much responsibility should the NTEC take for an unresolved outcome, in their decision not to recount the primary votes? Given that candidates are not represented by political parties, they had the most experience in what was needed to reach an acceptable result.
COMMENT: There are a lot of things went wrong here. I suspect if they had their time again, a full re-count would have taken place and I suspect we’ll never see a Mayoral partial re-count.
Thank you for providing this well detailed information and overview.
For a majorirty of Mrpantwe, Alice Springs residents and electors, this ‘outcome’ is a farce and undemocratic.
As was the Council ceo’s ‘decision’ to fund Matt Patterson’s legal costs for this hearing, and not Jimmy Cocking’s.
The fair ruling should have been another total recount, or mayoral election, ballot papers marked in pen only, and counting conducted outside Alice Springs, excluding any local residents.
NOTE: I removed one of your comments as I’m not sure it is correct, and even if correct, carried a libellous imputation. I have no interested in paying for lawyers.
What a right mess! I hope I’ve got this right.
From the candidates not putting up scrutineers bar one individual who was then really not scrutinising the ballots anyway because they weren’t allowed to. Even if they had been more it wouldn’t have made any real difference because they weren’t able to look at any ballot papers either and still wouldn’t have had any real clue on preference flows.
But the Electoral Commission messed up by not running a full recount. To me a recount is when you recount every vote not just some of them. Even the best counters can make mistake and it was an egregious error not to recount the first preference votes of the two leading candidates.
The NTCAT appears to have not understood either and decided not to get involved. Could they not have just said “bit of a mess here let’s just start the count again from scratch” and then found a way for scrutineers to look at individual ballot papers using cameras and tv monitors?
I didn’t even get into problems the NTEC had in staffing the elections. It is very difficult to get any casual staff in the NT at the moment with border closures and the disappearance of a whole class of casual workers travelling Australia on working holidays. Plus some older workers who usually work on elections wouldn’t this time due to Covid.
Apart from a few Mayors, NT local government elections are PR-STV. Full re-counts of PR-STV are a nightmare and partial re-counts are done to resolve the contest between the final competing candidates, which is where disputes over results normally occur. It looks to me that this PR-STV approach has been taken to the Mayoral re-count and it would have been wiser to do a full re-count.
I’ve attended Courts of Disputed Returns hearings where the first thing the Judge seeks advice from counsel on is their powers. Courts ruling on elections are pretty rare and reading the NTCAT rules on elections, their power does look limited. But as I mentioned in the post, it could be argued the Tribunal had a broader public interest test, but it has chosen to stick to its legislated powers and ruled that the NTEC had applied the law correctly and left it at that.
Scrutineers were limited in their role on election night but they had rights to challenge at the check count. As I said in the post, that’s where most traditional scrutineering takes place in Australia. Australian parties treat election night scrutineering as an information gathering process with the testing of formality taking place on the check count. The candidates involved in this count don’t appear to have been entirely on top of the process and their rights.
The tiny NTEC is based in Darwin, 1,500km from Alice Springs. That’s twice the distance from London to the Shetland Islands for a UK comparison. It flew staff from Darwin for the re-count, but the original election had been undertaken remotely by local staff trained for the event, and as I mentioned, there was great difficulty getting staff.
I wrote this post because people don’t understand that elections are governed by tightly defined laws. Candidates have to object to rulings on the count when they are made and before the count is undertaken and you can’t ask for the decision to be changed after the count when you know the result. Nor can you go to a court afterwards if you didn’t object to a ruling before.
One of the major failings of several US Presidential election cases was trying to launch action against the conduct of the election after the event rather than before. In one challenge to Pennsylvania’s postal vote law changes, one court was prepared to consider their constitutionality, but warned they would not give the relief that the applicant wanted, which was to exclude hundreds of thousands of postal votes. A higher court then ruled the judge couldn’t hear the case because it had been made too late, and the Supreme Court dismissed the attempt to refer the case to them.
Antony many thanks for your detailed reply.
Antony,
two other points that might be of interest (I was closely involved in the Katherine election).
1) the Katherine first preference votes were counted on the first night then the next day the ballots were taken to Darwin and the first preferences were counted again. We had scrutineers in Katherine, but it was very hard to arrange scrutineers in Darwin. All the non-Darwin and non-Alice Springs elections were counted in Darwin/Alice, which is a serious structural injustice, meaning candidates in those elections will find it very difficult to arrange scrutineers. I’ve got lots of friends and contacts in Darwin, but still wasn’t successful in getting anyone.
2) I read recently in an ABC report that the NTEC boss told the NTCAT hearing that he had done a full recount until questioning revealed that he’d done only a partial recount. Jimmy Cocking is on record as saying he thought a full recount was going to be done. It’s unclear whether that was merely a misunderstanding on his part (in which case he could have made an appeal at the relevant time) or whether he was given misleading information, in which case he wouldn’t have had cause to appeal the recount method.