SA’s Black By-election, plus why SA needs to update how it counts early votes

(Update 20 November – I did not know when I wrote this post, but two days before polling day for the Black by-election, the Electoral (Miscellaneous) Amendment Bill was introduced into the Legislative Council. Its provisions include allowing the issuing Early votes as ordinary votes, a provision which allows Early votes to be counted on election night. A step forward compared to what happened at the Black by-election.)

Tonight I will be covering the Black By-election at the ABC’s election website.

As my blog receives a massive number of click throughs from Google whenever there is an election, I make sure to provide a link to where I’m reporting the results. So if you want to know Black by-election results, try the Black by-election page at ABC elections.

But it’s also worth me publishing a post on how the South Australian Electoral Act will probably prevent us knowing the winner of the Black by-election tonight.

More than 10,099 ballot papers for the Black by-election, 8,544 Early votes and 1,555 Postal votes, sit sealed in Declaration envelopes at the Electoral Commission waiting to be opened and counted. But the law prevents the SA Electoral Commission from counting these votes tonight. Counting of them cannot begin until Monday.

South Australia is the only Australian jurisdiction that still takes Early votes as declaration rather than ordinary votes.

Let me explain the difference. An ordinary vote is one where you attend a voting centre and have your name marked off the roll. You are then given a ballot paper which you complete and place in a ballot box. After 6pm on election day, the ballot boxes are opened, counted and the results reported.

With Declaration votes, your name is not marked off the roll. Instead you are given a ballot paper, which once completed, is placed in a declaration envelope. On the outside of the envelope you must complete your name and address, and in the case of SA Early voting, tick a box giving a reason why you can’t attend a polling place on election day. Finally you sign and date the envelope, after which it is sealed and placed in a declaration vote ballot box.

Most Early votes at federal elections in South Australia, and at elections in every other state, are now mostly taken as ordinary votes. If you vote at an Early centre in your district you cast an ordinary vote. If you vote early at a centre outside your district, the vote is taken as a declaration vote. Most early votes are taken within a voter’s home district, especially at by-elections.

When Declaration votes are counted, the details on the outside of the envelope are first checked and the details used to mark the voter off the electoral roll as having voted. Once a sufficient sized batch of envelopes have been processed, they are opened and the ballot papers put aside for counting. For Early votes the processing of envelopes is straight forward if time consuming. For Postal votes it can be more complex with checking of the envelope against the postal vote application also done. Envelopes with errors in the declaration are not opened and the ballot paper is not accepted into the count.

As well as requiring Early votes to be taken as declaration votes, the South Australian Electoral Electoral Act goes further and prevents declaration envelopes from being processed and counted on election night. They cannot be counted until the Monday after polling day.

Which in the case of the Black by-election, means there are more than 10,000 declaration votes that can’t be counted tonight.

Based on how declaration votes impacted on the results at the Bragg and Dunstan by-elections, tonight’s counting may not deliver a clear winner.

If the Liberals lead at the end of of tonight’s counting, I’d be confident the Liberals will win.

If Labor’s two-party preferred vote is above 54% at the end of tonight’s counting, we should be reasonably confident that Labor will win.

But a result tonight with Labor between 50% and 54% two-party preferred would leave us waiting for the declaration votes to be processed and counted on Monday.

I draw these conclusions based on the results of the Bragg and Dunstan by-elections.

Bragg By-election

The Bragg by-election was held in the safe Liberal seat of Bragg in Adelaide’s inner south-east in July 2022. It was held following the resignation of former Deputy Premier and Attorney-General Vickie Chapman.

The chart below breaks down the by-election results into polling day votes counted and reported on the night, and Declaration votes counted from the Monday after polling day.

Overall turnout for the by-election was 83.8%, and with polling day votes making up 58.8% of all votes, the election night count only reached 49.3% of enrolment. Polling day votes recorded a narrow 50.9% majority for the Liberal Party. But Declaration votes split 62.3% in favour of the Liberal Party, producing an overall two-party preferred result of 55.6%. So declaration votes shifted the result towards the Liberal Party by 4.7% compared to the election night count.

As election analysts like me operate on swing, it is remarkable to look at the swing by vote type. Polling day votes swung 6.1% to Labor, Declaration votes 2.2% towards the Liberal Party, producing an overall swing to Labor of 2.6%.

These differences are worse at by-elections because changes in turnout and changes in what electoral officials the ‘voting channel’ used by voters. There is no Absent voting at by-elections, SA doesn’t use polling places outside district boundaries at by-elections, and more people switch to postal and pre-poll voting for by-elections.

Dunstan By-election

The Bragg by-election was held in the marginal Liberal seat of Dunstan in Adelaide’s inner south-east in March this year. It followed the resignation of former Premier Steven Marshall. The chart below breaks down the result by polling day votes and Declaration votes.

Overall turnout for the by-election was 80.8%, and with polling day votes making up 59.8% of all votes, meant that the election night count reached only 48.3%. Polling day votes recorded a clear 54.0% majority for the Labor Party. But Declaration votes split 53.8% in favour of the Liberal Party, producing an overall two-party preferred result of 50.9% for Labor. So declaration votes shifted the result towards the Liberal Party by 3.1% compared to the election night count.

Polling day votes swung 3.5% to Labor, Declaration votes 1.7%% towards the Liberal Party, producing an overall swing to Labor of 1.3%, enough to deliver Labor victory. What looked like a clear Labor victory on election night turned out to be a much narrower race.

Again, the impact of this difference is greater at by-elections than general elections, but it can still make it difficult to call general elections on the night if Early votes are not counted.

At the recent Queensland election, the swing against the Labor Party on election day was 4.9%, which would have produce a close outcome if the swing was repeated with Early and Postal votes. Thankfully Queensland takes Early Votes as ordinaries, pre-processes Postal votes, and counts as many early and postal as possible on election night. This allowed everyone to know the result in Queensland on the night as early and postal lifted the swing against Labor to 7% and clarified that the LNP would win the election.

In South Australia the additional clarity provided by counting early votes on elkection night would not have been availble.

After both the 2018 and 2022 elections, the SA Electoral Commission recommended that Early votes be taken as ordinary votes and counted on election night. A bill to allow this stalled in the parliament before the 2022 election, caught up in a disputes on other provisions on the bill.

Attorney-General Kyam Maher has voiced support for changing how Early votes are taken and counted, but the measure will form part of a broader electoral reform bill that has yet to appear.

The Early Vote for the Black By-election

At the Bragg by-election there were 9,192 declaration votes of all types that made it into the count representing 41.2% of the total vote. Turnout was 83.8% so declaration votes represented 34.5% of enrolment.

At the Dunstan by-election there were 8,810 declaration votes of all types representing 40.2% of the total vote. Turnout was 80.8% so declaration votes represented 32.5% of enrolment.

The Black figures are higher than for both Bragg and Dunstan. 10,099 declaration votes on hand represent 41.8% of enrolment. There is every chance there will be more votes to count starting Monday than will be counted and reported from polling places tonight.