How many Voters mark Referendum Ballot Papers with a Cross? Not many based on evidence.

Finding – in 2009 WA held a referendum on daylight saving. A one-box ballot paper similar to the Federal referendum ballot was used and the formality rules on ticks and crosses were exactly the same. Out of 1,148,853 ballot papers, just 199 were marked with a single cross and declared informal, a rate of just 0.02%.

And in addition – as I explain later in the post, the ticks and crosses issue arises because parliament hasn’t acted to clarify the law.

At ‘The Voice’ referendum, how many people will be confused by the referendum ballot paper? The instructions are very clear to write “Yes” or “No”, but how many are going to be confused and instead use a tick or a cross?

This has become an issue because the Referendum (Machinery Provisions) Act states that where a voter has not written Yes or No, the ballot paper will be assessed for intent.

Unlike NSW electoral law, the Referendum Act doesn’t provide specific guidance on how to deal with ticks and crosses. The Referendum Act was amended earlier this year to deal with ballots marked with ‘Y’ or ‘N’, but everything else is still left to assessment of intent.

On the Australian Electoral Commission’s legal advice, the intent provision means a tick is a sign of agreement and will be counted as a Yes, but a cross is ambiguous in intent and will be treated as informal. This is the same ruling that applied at four referendums in 1988 and two in 1999.

Parliament could have amended the Act at any time in the last 35 years to address ticks and crosses, as NSW has done four times in the same period. But the politicians haven’t addressed it and now some attack the Electoral Commissioner, despite him simply applying the law as written by politicians, and despite using the same rules as applied by commissioners going back to the 1980s.

This morning “The Guardian” reports a field director for Fair Australia as saying that crosses could account for up to 5% of the vote being discounted.

This is a ridiculous figure in my experience. Due to preferential voting, Australia is devoid of ballot papers with instructions to use a tick or a cross.

Informal Voting at General Elections

The 2016 Federal election informal voting survey found that just 0.4% of ballot papers were informal due to ticks and crosses. At the 2021 WA election the rate was 0.5% and the same figures at the 2022 Victorian election. It is virtually nil in NSW and South Australia due to legislation dealing with ticks and crosses. The category is not separately identified in Queensland and Northern Territory informal voting reports.

Is this research relevant to referendums though? Will a one-box referendum ballot paper induce more crosses than a House of Representatives ballot paper?

On the evidence of past referendums no. Informal voting at the 1999 Republic referendum was just 0.86%, and under 1.5% at the five other referendums held since 1988. That is around a fifth of the level of informal voting at House elections. Given many informal votes are blanks, that doesn’t leave a lot of ballot papers marked with crosses being treated as informal.

The 2009 WA Daylight Saving Referendum

Thankfully there is some evidence on informal voting at referendums using one-box ballot papers.

In 2009 Western Australia held a one-box referendum on Daylight Saving. The formality rules on ticks and crosses were exactly the same as at Federal referendums. The overall the rate of informal voting was just 0.40%.

Out of 1,148,853 ballot papers, just 199 were marked with a single cross and so informal, just 0.02% of all ballot papers.

The Western Australian referendum ballot paper is very similar to the Federal version with one box in which to write Yes or No.

The issue of ticks and crosses arose in the campaign. Here is the Electoral Commission’s summary of the issue from the Referendum report.

Formality of Ballot Papers

Section 5 of the Daylight Saving Act 2006 requires that for this referendum electors were to answer the referendum question by writing either ‘Yes’ or ‘No’ in the box provided underneath the question on the ballot paper. (Omitted – text of the question – see ballot paper above)

However, section 24(2) of the Referendums Act 1983 which also applied to the referendum, gives electors a statutory right to adopt any method of marking the ballot paper provided the elector’s intention is clear.

For this referendum, this meant that responses other than ‘Yes’ or ‘No’ could still be regarded as formal, provided that they clearly indicated the voter’s intention and effect was given to that intention.

At the 1992 referendum on daylight saving and the 2005 referendum on retail trading hours, debate took place during the time leading up to those polls as to the possibility of answering questions with either a tick or a cross. With this in mind updated legal opinion was sought on the advice to be provided to Returning Officers in the Formality Guide on the variety of methods anticipated on the marking of ballot papers.

Again the issue of the tick and the cross drew considerable media attention, stimulated by the unauthorized release of an official formality guide to a local radio station. The argument put publicly was that while a tick would be accepted and a cross rejected, this favoured the supporters of daylight saving and worked against those opposed to daylight saving and the Electoral Commissioner therefore was taking a partisan stand on the issue.

The legal advice given to the Commission was that a tick would appear to clearly indicate support for the statement on the ballot paper while a cross does not clearly indicate a particular elector intention and its use on the referendum ballot paper would render that ballot informal. Despite Commission comment to this effect, there remained some ill feeling about the interpretation. (Omitted – reference to letter in Appendix) A survey of all informal votes was carried out by Returning Officers and forwarded to the Commission for analysis.

The results of this survey begin on pages 25–29. The overall informality rate across the State was 0.40%. The most significant reason for informality was electors not marking their ballot papers or marking their ballot papers with scribble. In this referendum 4,650 ballot papers were informal. Of this figure, 58.7% were blank or marked with scribble. On the contentious issue of the meaning of a cross only 199 electors from across the State marked their ballot papers in this matter despite concerns to the contrary; just 4.26% of the total of informal ballot papers.

Why do we have a savings provisions about assessing intent?

An argument put to me is that we should allow Yes or No and nothing else. If you read the Referendum Act, that is how the “manner of voting” is worded in Section 24.

Section 24 is the basis for the instructions on the Referendum ballot paper. The instructions are very clear, to write Yes or No “in the space provided”.

But what if you wrote Yes or No and it extended beyond the space provided? To avoid pedantic legalism, all acts concerning elections include savings provisions so that intent can be the determining factor in ruling on ballot paper formality rather than pedantic interpretations.

The question is, what can be permitted under intent provisions? Someone writing ‘Yeah’, ‘Nope’, ‘affirm’, Hell yes’ or “F*** No’ might be clear.

What about “Yes” in the box, then outside the box continue with “to recognition but NO to the Voice”. A strict interpretation of Section 24 would count that as Yes, but the other words on the ballot paper suggest it is not a clear Yes or No answer to the question and is therefore informal.

So what are the savings provisions?

Section 93 of the Referendum Act

Section 93 is labelled “Informal ballot papers” and deals with a number of technical issues concerning correct authorisations and identification on ballot papers. The final two sections, 93(8) and 93(9) then provide savings conditions concerning how the vote has been completed.

93(9) about ‘Y’ and ‘N’ is a new provision added earlier this year. It clarifies that Y and N are formal where previously they were admitted to the count under 93(8) as showing clear intent. This provision means there can no longer be dispute about Y and N.

But ticks and crosses? This first came up in 1988 when there were four referendums held the same day, all on one ballot paper.

The legal advice was a ballot paper with four ticks was formal for all four votes because a tick in response to a question was a mark of agreement.

A ballot paper with a combination of ticks and crosses was formal for all four votes, as the use of ticks and crosses on the same form was read under case law as a combination of agreements and objections.

But a ballot paper with four crosses was deemed to be informal as the meaning of all X’s in response to a series of single questions was deemed ambiguous and not clear intent.

The two referendums in 1999 used two single question ballot papers, and The Voice referendum also uses a single question ballot paper. The same legal advice is that a tick is agreement with the question asked and counts as a Yes, but a cross is ambiguous in its intent and counted as informal.

Couldn’t the AEC count both or reject both?

The legal advice on Section 93(8) is that the AEC must assess intent based only on what is written on each ballot paper. There is much case law on intent in relation to forms, most of it outside the area of electoral law. This is the basis for the ticks and crosses ruling already outlined.

Is this fair to the Yes and No cases given ticks get counted as Yes but crosses are informal?

The problem for the AEC is it cannot deal with the question based on fairness. It can only assess each ballot paper individually. It can’t use fairness to reject a tick because a cross was rejected on another ballot paper, nor accept a cross because a tick was accepted on a different ballot paper.

The assessment has to be made based on the ballot paper in front of the officiating officer, not based on a ruling for a ballot paper with a different marking.

And one final point. Ruling on the meaning of ballot papers is for the officer in charge of a polling place at the first count. It is for the Divisional Returning Officer on the re-check of election night counts in the week after the election. It is for the Australian Electoral Officer for each state and territory if there needs to be a re-count, and it is for the Court of Disputed Returns if there are ballot papers in dispute in a close contest at the end of the count.

It is always the person in charge of the ballot papers who makes each ruling. The Australian Electoral Commissioner Tom Rodgers has issued a series of guidance rulings based on legal advice. This guidance can be found in the Scrutineers Handbook. This includes some of the more common forms of incorrectly completed referendum ballots and is issued to try and standardise rulings across the country. But it is always the officer with possession of the ballot papers who rules.

Couldn’t Parliament Fix this?

Unequivocally yes. It is entirely within the power of Parliament to set out the rules on what can be treated as formal.

The issue of ticks and crosses arose at NSW elections following the introduction of optional preferential voting in 1980. There were several cases after the 1981 state election on whether ticks and crosses should be allowed but no rulings were made.

In 1982 the Wran government amended the savings provisions of the state act to clarify that a tick or cross could be counted as a formal first preference. (Incidentally, the Commonwealth Electoral Act does the same thing for ticks and crosses marked above the line voting on Senate ballot papers.)

In 1990 the Greiner government overturned the savings provision and replaced it with

For the purposes of determining the voter’s intention under subsection (1), a tick or a cross placed in a square on a ballot paper is not sufficient by itself to indicate that the voter intends to give a first preference vote to the candidate concerned.

I won’t go into detail here, but that decision by the Greiner government caused an absolute mess at the 1991 state election. A referendum was held the same day on Legislative Council reform using a two-box ballot paper as shown below.

As you can see, the instructions were tick one of the two boxes, exactly the form of voting the government had declared informal when used on a lower house ballot paper.

As you would expect with such confusion between ballot paper instructions, informal voting at the lower house election tripled to more than 9%, and in the four seats with only two-candidates, informal voting reached as high as 23.5%.

After winning the 1995 election, the Carr government again permitted ticks and crosses to be counted under the savings provision. However, it remains illegal to advocate for a tick or a cross to be used on a NSW ballot paper (Section 189 of the NSW Electoral Act) and registered how-to-vote material must only use numbers.

So why hasn’t Federal Parliament dealt with the matter?

Well the Hawke government did try in 1988 and 1989. It tried before the 1988 referendum and again in 1989.

I’m indebted to Kevin Bonham for the excerpt below (Read Kevin’s full post on ticks and crosses here)

Labor tried again on 21 December 1989, moving an amendment to add “For the purpose of ascertaining a voter’s intention, regard shall only be had to the word “Yes” or “No” written alone or without words of qualification.” The Democrats moved an amendment to change that to “For the purpose of ascertaining a voter’s intention, regard shall only be had to the word “Yes” or “No” written alone within the square provided, irrespective of words of qualification elsewhere on the ballot paper“. Labor said they would not accept the Democrats’ amendment as it would mean that a voter who wrote Yes inside the square, crossed it out and then wrote No outside the square, would not be counted. As a result both Labor’s amendment and the Democrats’ amendment to the amendment were withdrawn, and the 1984 savings provision again survived. This is the last time the parliament seems to have addressed the issue.

And there the matter has rested for 34 years since, apart from the amendment earlier this year about “Y” and “N”.

The AEC Commissioner’s guidelines for the 2023 referendum are no different to the ones issued for the 1988 and 1999 referendums.

An attempt was made to fix the legislation in 1989 but it didn’t pass. The Commonwealth Electoral Act includes provisions on dealing with ticks and crosses on Senate ballot paper. NSW has dealt with ticks and crosses several times but Federal Parliament has done nothing.

So, next time you hear a politician complaining about the AEC’s ruling, ask that politician what they have been doing for the last 35 years.

As they say, a bad tradesman always always blames their tools.

Addendum – 2016 Queensland Fixed Four-Year Term Referendum

A referendum on fixed four year parliamentary terms was held in conjunction with the 2016 Queensland local government elections. It used the two-box ballot paper shown below.

As you can see, the instructions said to tick one box. Fortunately this couldn’t cause any confusion with the local government election voting systems used the same day.

The rate of informal voting for this referendum was 2.95%, more than three times the rate of informal voting at the one box Republic referendum in 1999.

The referendum passed with a 52.96% Yes vote to the amazement of most observers. There was minimal public education, a very small Yes/No pamphlet written by public servants and distributed to households and very little campaigning either for or against the proposal.

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