The Morrison government this morning introduced the Electoral Legislation Amendment (Voter Integrity) Bill 2021. (You can find the bill and explanatory notes at this link)
The bill’s provisions will require polling day and pre-poll voters to present some form of identification when they turn up to vote. ID will be checked against details on the electoral roll before ballot papers are issued. Presentation of ID will replace voters being asked for their name and address.
There is no requirement for photo ID. There are numerous permitted documents to prove identity, including driver licences, passports, Medicare cards, proof of age cards, birth certificates, citizenship certificates, credit cards, bank statements, utilities, letters from the Electoral Commission, tax assessments and several documents specific to Indigenous voters.
Voters without ID can also be vouched for if they are voting with a voter who does have identity documents. This provision deals with couples turning up to vote when only one has brought their driver licence.
Voters unable to pass the above tests will still be allowed to vote, but they will be directed to another part of the polling place where they will be issued with ballot papers and a declaration vote envelope.
On the envelope voters must write their name, address, and date of birth. Once completed, their ballot papers will be placed in the envelope and the envelope sealed. The envelope will be put aside for post-election processing.
In the week after the election, the declaration envelope will be checked against the electoral roll, and if details are correct, the ballot papers will be extracted and admitted to the count.
The government’s stated aim with these changes is to improve election integrity. The government stresses that this improved integrity can be achieved without any voter being denied the opportunity to vote.
Voter ID is politically sensitive given how it has been weaponised at US elections. This legislation is mild compared to what we have seen in the United States but will still attract a vigorous political debate.
I’ll leave it others to engage in that debate.
In this post I’ll examine what evidence there is that points to the need for this legislation, and also at whether the legislation can ensure voters are not denied the vote.
Even if the legislation is justified, can it be implemented safely in time for the next election.
But I’ll start by looking at the last time similar laws were introduced, in Queensland by the Newman LNP government. The laws were used for a by-election in 2014, and the state election in 2015, before being repealed by the newly elected Palaszczuk Labor government.
The Newman Government’s Voter ID Experiment
After the Newman government’s landslide victory, Attorney-General Jarrod Bleijie released a discussion paper in January 2013 on possible electoral law reforms. These reforms included a proposal to require voters to present ID before voting.
After the consultation, the government did what it was probably always going to do, which was introduce a requirement for voters to show ID. The new rules were used for the first time at the 2014 Stafford by-election.
At the time I wrote this post on how the new laws would work, including the range of documents that could be used as ID. The documents were similar to those proposed under the Federal laws, though the Morrison government’s bill adds several other documents, and allows vouching or attesting which wasn’t allowed in Queensland.
Around the same time as these changes were introduced, Chris Berg, then a Research Fellow at the Institute of Public Affairs, wrote on Voter ID and described it as a non-answer to a non-problem.
After the by-election I wrote on how the new laws worked at the Stafford by-election. 199 insufficient ID votes were cast, 0.9% of all votes. As I mentioned in the post, the Electoral Commission wrote to all voters ahead of the by-election and advised that voters should bring ID to make voting easier.
Speaking to a Parliamentary Committee in April 2015, Acting Electoral Commissioner Dermot Tiernan released some broad statistics on documents provided. Around 60% of voters presented the Electoral Commission’s letter as proof of ID, while around 33% used their driver licence.
Reliance on a letter from the Electoral Commission as proof of identity was a strange consequence of the voter ID law. If all voters are sent a letter, and the letter can be used as ID, you can’t help but think someone wanting to rort the election could simply engage in a bit of letter box theft.
The Newman government was defeated at the 2015 election, an astonishing result given the size of the government’s majority. Given the ID law was repealed shortly afterwards, the Electoral Commission Queensland (ECQ) engaged in no research on how the laws worked.
Again speaking to the Parliamentary Committee, Mr Tiernan provided some general comments on how the law worked. Across the state, 0.6% of votes were declaration votes through insufficient identity, though Tiernan also indicated that some votes had been incorrectly rolled in with totals of Absent and other declaration votes.
Mr Tiernan also revealed there had been a problem caused by the new laws, introduced at the same time as new roll mark-off software. At some polling places, voters were marked off the roll, and then directed to the declaration vote desk. As a result, when these declaration envelopes were processed, the voters were indicated as having already voted.
The Australian Electoral Commission will be rolling out new roll mark-off software at the 2022 election. If the same error were repeated at a Federal election, it could create a pool of suspected multiple votes that could be challenged. It raises the prospect that a close electorate could be put at risk by the late introduction of voter ID laws.
Lessons from Queensland
First, if you are going to legislate on voter ID, do it early so the laws have time to be implemented. You might even get chance to try them at a by-election.
Second, it is a major change to the way elections are conducted, so it is really worth a serious investigation into how the law might work, and whether the legislation is sufficient.
The government has pointed out that voter ID has been recommended by Joint Standing Committee on Electoral Matters (JSCEM) inquiries into the 2019, 2016 and 2013 elections. That’s true, but it is a little strange to respond with legislation in the final sitting fortnight of the government’s third term.
Plus when you look at the JSCEM reports, the recommendations are a bit short of detail.
The relevant parts of the 2019 report quotes several submissions before pointing to a previous exploration of the subject in the JSCEM report on the 2016 election. The government never responded to the recommendations of the 2016 report.
In JSCEM’s 2016 report, there were again quotes from submissions to the inquiry, but it then pointed to the JSCEM report into the 2013 election as justification for introducing voter ID.
The 2013 JSCEM committee was chaired by current House Speaker Tony Smith and did a very thorough report on the 2013 election. It led to reform of the Senate’s electoral system. Copies of the final report that dealt with voter ID can be found at this link.
Chapter 5 of the report went into detail on voter ID and reviewed aspects of the Queensland experiment. In paragraph 5.58, the Committee mentioned the lack of clarity in the Queensland act on how declaration votes should be dealt with, before proceeding with a detailed discussion of submissions made to the inquiry. It then made a recommendation (Number 17) that similar voter ID laws be introduced for Federal elections. However, the recommendation only referred to addresses being checked with declaration votes, where the Commonwealth declaration vote envelope includes a date of birth.
So it is fair to say that only the 2013 JSCEM report has done detailed work on voter ID. Eight years later, you would expect such a major change to electoral procedure would warrant a newer inquiry more specific to the proposed law.
Another point to make concerns how to deal with the increase in declaration votes on polling day. No problems were reported at the 2015 Queensland election, but that was an election for a single chamber using optional preferential voting rules. It didn’t take long to vote so queuing wasn’t a problem, the it took time to complete the declaration envelope.
Federal elections are for two chambers, with full preferential voting in the lower house, and semi-optional preferences for a giant upper house ballot paper. It is going to take longer for each declaration voter to vote. Allowance will have to be made to prevent queuing.
There is also the issue of how declaration votes will be scrutinised after the election. Are they to receive the same level of scrutiny as absent and provisional votes?
Proof of Identity versus Proof of Address
In the proposed section 200DI, the request for a voter to give name and address is replaced by the voter presenting their ID. The provision allows the voter to be asked questions to resolve the person’s name or place of living, and further questions concerning whether the person with the ID is the same person as on the roll.
This comes down to the problem of proof of identity versus proof of residence. There are many people with driver licences that do not match where they are enrolled to vote. This comes down to some people having more than one address. Some voters also register their licence and vehicle at a different address to where they live for issues to do with insurance, registration and access to parking permits.
That the act refers to ‘proof of identity’, and that many of the documents will not have an address, points to the main purpose of the provision is about establishing who the voter is.
But it is clear that issuing officers may be required to ask further questions to resolve differences between addresses on voter documents and addresses on the electoral roll.
Voters sent off to cast a declaration vote will not have this opportunity to resolve addresses. Below is the declaration vote envelope used for provisional votes.
There is a lot of detail to be completed. I’d be interested to know how a remote indigenous voter with limited written English skills would deal with it.
How will it be processed? While it is easy to say no voter will be denied a vote, will their vote instead be denied entry to the count? Another question that could be answered by an inquiry into the legislation.
Multiple Voting versus Personation
While multiple voting keeps being tossed around as the purpose of the legislation, what it is actually about is personation, one person voting while claiming to be someone else.
All the available statistics on multiple voting concern instance of individuals voting more than once. That is difficult to do in countries like the UK and Canada that use precinct voting where you can only vote at one polling place.
In Australia, our laws on voting are guided by the use of compulsory voting. We allow votes to be cast at any polling place in an electorate, and allow liberal access to pre-poll, postal and absent voting. As a result, it is more likely that someone could, accidently or deliberately, vote more than once.
If voter ID were introduced, then unless electronic roll mark-off devices were connected together by wifi and the internet, you still could not prevent multiple voting.
Even then, you would have to allow declaration voters for people who say they haven’t voted but have been marked off as voted.
Which raises another security issue on trying not to open the electoral roll to the internet by linking up roll mark-off devices
At the 2019 election, there were around 2,000 multiple roll mark-offs from around 15 million votes. That’s about 13 per electorate.
I use the term mark-off because it is often clerical error that’s the cause rather than an elector voting more than once. A polling official marks off an adjacent name, resulting in one elector being reported as voting twice, and the next voter getting a non-voter fine. These mutiple mark-offs mostly get resolved in this way.
Most admitted multiple votes have specific causes. A common one is an elector voting in a nursing home, and then being taken out to vote again on polling day.
At the 2019 election, around 20 suspected multiple voters were referred to the Australian Federal Police. None were prosecuted, either for lack of public purpose or because there was a lack of evidence to prove the case.
As for proof of personation, there is none. If voters were voting in the name of someone who voted, it would be detected as a multiple vote. If it was done on behalf of a voter the miscreant knew would not vote, we have no way of detecting such a fraud. This is the sort of false vote that might be detected by voter ID, but we have no knowledge of its incidence.
The Electoral Act was recently amended so that a suspect multiple voter could have their name removed from the public electoral roll. Such a voter would still be able to vote, but they would have to cast a declaration vote, and only one declaration vote per person can be lodged. It is a mild imposition placed on the tiny number of multiple voters against the alternative of making all voters show ID.
Back in 2009 I wrote on a Court if Disputed Returns challenge in the Queensland state seat of Chatsworth. There were 30 multiple mark offs. The Court went through the detail of each and found 28 were clearly clerical error. The other two were confused elderly voters. It shows the level of record keeping at Australian elections that is the true guard against multiple voting.
So What’s the Point?
Electoral laws must always be kept under review. In the 30 years I’ve been working on elections, the way electoral rolls are maintained and used has changed, as has the way people vote with a shift from on the day voting to pre-poll voting.
Our electoral system relies a lot on trust, but then so does the functioning of our whole society. The last two years have highlighted how much we rely on out fellow citizens to act in the common good.
To say that checks on voter ID should never be allowed can lead you into a position where you deny any right to the Electoral Commission to question whether someone is a valid voter.
What is the minimum level of questioning of a voter is permitted by a polling official before it becomes voter suppression? That’s the basic question to be addressed when you discussing voter ID.
How that question is addressed in this country is conditioned by our use of compulsory voting. How can you have compulsory voting and ID laws so strict that a voter is prevented from voting?
The voter ID law being proposed by the government is very weak by international comparison. For most voters it requires only a small change that should not inconvenience them. But a small number could be inconvenienced by being forced to cast a declaration vote.
It is not US style voter suppression, though some will argue it is the thin end of the edge with more to come.
For all the arguments for or against voter ID, there are very good reasons to ask why it is suddenly so important in the final weeks of the government’s third term in office.
Can it be implemented by the AEC in time without the problems that occurred in Queensland? How will declaration votes be dealt with? How do you stop mistakes being made where voters are denied the vote, or be misled into thinking they can’t vote without ID?
Are particular groups of voters going to be disproportionally disadvantaged by these laws? Particular mention has been made of remote indigenous voters, a group who are already underrepresented on the electoral roll, and who already face difficulties casting and having their vote count as a result of where they live.
Voter ID law shouldn’t instantly be rejected. Nor should it be suddenly introduced without more discussion than the current bill has received.
Tens of thousands of casual polling officials need to be trained before the election. You would hate the late passage of voter ID legislation to result in officials making errors come election time.
And you would hate the law to be responsible to challenges to the result after the election.