At the risk of repeating myself.
Andrew McGuinness, over at AnomalyUK, writes somewhat incredulously at my suggestion that John Hemming’s proposal that all applications for postal ballots be scrutinised by political parties may be, in specific ways, as much open to abuse as the existing system that John is seeking to challenge.
Andrew writes:
“How does he think parties will be able to depress turnout? The only way would be by pointing out that some postal vote applications are invalid - either the applicant is not entitled to vote, or the application has not been made by the ostensible applicant. In either of these cases identifying the problem would be a good thing.”
while failing to notice that the quotation he includes in his piece from my own original piece explains my reasoning pretty clearly.
Still, and at the expense of repeating myself, the problem with the type of partisan scrutiny that’s being proposed is one both of simple motivation and logistics.
Andrew suggests, rather naively I feel, that scrutineers from political parties would only be ‘pointing out that some postal vote applications are invalid’ but neglects to point out exactly how they would ‘know’ this to be the case at the time that applications are scrutinised.
In practice, the one thing that politically motivated scrutineers would not be doing is questioning applications on the basis of a reasonable suspicion of their invalidity. Such judgements would inevitably be made, as I explained before, on the basis of what political parties would almost certainly refer to as either ‘anomalies’ or ’suspicious patterns’ in applications.
Requests for absentee votes would be challenged as a simple matter of course simply because the voter will have asked for ballot papers to be sent to an address other than that which appear against their name on the electoral role. In fact there would be little point in having requests for absentee vote scrutinised at all, you might as well just remit them all for further verification and save everyone the trouble of looking through the application to point them out.
Beyond that we could fully expect to see applications challenged on the basis of their being ‘too many applications’ from a particular street, estate or even, at Parliamentary elections, ward - judgements which, if left political parties, will invariably reflect on their knowledge and perception of the likely voting intentions of people in that area. The partiality of scrutineers, far from offering greater security, as Andrew suggests, will simply guarantee that each will challenge applications according to their political leanings and their perception as to whether the voter making the application is likely to vote for their party or for one of their opponents.
Its not simply political bias that will intrude into such a system, but also, depending on the parties involved, other less savory forms of bias will come into the picture - allow the BNP to scrutinise applications for postal votes in an area in which they’re standing and you can fully expect that every single application bearing a name such as Khan, Singh or Patel will be challenged as a matter of course and for reasons which neither need nor bear explaining.
Its here that logistics enter the picture.
Having had the political parties scrutinise applications and, in all likelihood, challenge the vast majority of them, someone then has the task of going out and contacting every applicant whose request for a postal vote has been questioned in order to verify the legitimacy of their request - assuming that you can contact them all prior to the date on which postal votes are issued, which is by no means certain as one of obvious reason why they may have asked for a postal vote is due their being busy with work and other commitments which would make it not only difficult for them to vote in person but even to be contacted in order to verify their request. That someone will have to be independent of any political party so as to avoid any prospect of intimidation, threats or trickery at the verification stage.
Inevitably, there will be some applicants who, even having made a legitimate request for a postal vote, will find their application declined as a result of having been ‘fingered’ by a partisan scrutineer as a possible ‘ringer’ and for no other reason than their personal circumstances having dictated that it has not been possible to verify their application and equally, a proportion of those who are denied postal ballots, despite having made a legitimate application, will then not vote in the election in question simply because a postal vote was the only means by which they could have voted.
This, quite simply, is how the process itself could, and indeed would, act to disenfranchise a number of voters and, therefore, depress the turnout in the election.
As i noted, with a considerable degree of unease, in another recent missive on this blog, the one ‘innovation’ which could offer real security is, unfortunately, the biometric data that goes with Blunkett’s ID cards, which would permit applications to be ’signed’ with a thumbprint which could be verified and which would make postal voting substantially more ‘resilient’ - to borrow a term from another of Andrew’s blog entries - than it is at present.
As I pointed out in discussing Blunkett’s comments on ID cards and voter fraud, however, this would also place the Lib Dems who have been, in the main, ‘leading the charge’ when it comes to complaints of electoral malpractice on the horns of a dilemma due to their opposition to ID cards.
Crack a joke. Get a biography in return.
After yesterday’s revelation that John Hemming, Deputy Leader of Birmingham City Council and Lib Dem PPC for Yardley, was once beaten in an election by a dog, today we’re treated to a full exposition of his career as a student politician back in the 1970’s - another thing John’s never quite got his head round is Denis Healey’s first rule of holes, when in one, stop digging…
Leaving aside the fact that the sheer entertainment value of his losing to candidate of the canine persuasion is enough to make all other consideration of his early political career completely irrelevant, John does offer this commentary on his earliest encounter with the evils of ballot rigging…
“In 1980 also there was an election for OUSU president in which I was not a candidate and did not formally support either of the slates. (I actually supported one candidate off one slate (Centre Democrat) and one candidate off the other (Progressive)). At the count it was found that a lot of the ballot papers had been filled in the same way (blogger’s interjection - how many ways are their to put a cross in a box?) and it was concluded that the election had been stuffed.
I was later told that ballot papers had been swapped in the ballot boxes in the process of them being taken to the count. I was told who did that, but 26 years later it would be unfair to finger anyone.“
With regards to the latter statement, Richard Mawrey QC, Election Commissioner in the recent case in Birmingham has this to say about John:
“His evidence was largely inadmissible hearsay.”
The more things change, the more things stay the same.
…
On a somewhat related note, Sunday saw John post on his blog the skeleton argument for his legal challenge on postal voting - scroll down the page a bit from the first link - and which appears to differ in few material respects from the arguments used in his earlier challenge in 2002 and seems likely, therefore, to suffer from the same failings which resulted in the earlier challenge being thrown out.
The most obvious flaw in his argument, which I spotted on Sunday but decided not to mention until after he found out the hard way, was his choice of respondent, one Anthony Lynton Blair, late of 10 Downing Street - one of the most important of all legal principles in litigation being to always make sure you sue the right person.
It comes as no surprise, therefore, to find that despite having ex-Tory MP Jerry Hayes QC on board as his brief - someone who you’d think would have known better - neither realised that they couldn’t actually sue the PM in this matter and should have, instead, brought their case against the relevant government department (Constitutional Affairs) until this pointed out them in trying to file their application, yesterday.
It seems doubtful that John’s case will even get to get to court at this time not least because, as was the case back in 2002, there is nothing in his argument to demonstrate that his own rights were infringed by what went on in Aston.
Moreover, in citing article 14 of ECHR, its non-discriminatory provisions, John has fallen into the trap of constructing a key part of his case on an aspect of human rights law which can only adequately be resolved by the court in terms of it making a ‘value judgement’ and, indeed, proceeds to shoot his case in the foot before it even gets to court.
John’s problem is nicely outlined in his skeleton argument as follows…
1. He cites Richard Mawrey’s comments in the Birmingham case as follows:
“On 4th April 2005 at the Election Court in Birmingham, the Commissioner, deputy High Court Judge Richard Mawrey QC, made the following findings in his executive summary of his judgement:
…(iv) “An applicant for a postal vote can ask for the postal vote to be sent to an address other than that of the voter: obviously this gives assistance to fraudâ€?.”
2. He later cites the following precedent at point 7
“It is further submitted that laws which have the practical effect of disenfranchising groups of people may contravene Article 3 of Protocol 1. For example, an inadequate system of postal voting might prevent disabled or ill people from exercising their right to vote. In Lippiatt v Electoral Registration officer Penwith District Council (County Court 21 March 1996 unreported) where a person was homeless, but had access to a day centre to be used as his correspondence the court held that the officer was wrong to refuse his application to go on the electoral roll.”
The problem here is that the provisions on postal voting which permit ballot papers to be sent to alternate address are there expressly for the purpose of allowing ‘absentee votes’ to be cast.
With the election now only three weeks away, should the court accept his other arguments and decide to rule in his favour it would have only two possible remedies open to it, either to take the unprecedented step of ordering the election to be delayed, which would have profound financial and constitutional implications, or exclude postal ballots from the election, disenfranchising the very same disabled and ill people he cites above and, thereby, breaching article 14 itself.
In such situations, where a court is faced with two conflicting rights, judgement is typically rendered on he basis of ‘least harm’ and would almost certainly result in a decision to allow the existing procedures to stand on the grounds that the harm resulting from disenfranchising legitimate absentee voters would far exceed that which might arise from the possibility of electoral fraud. Perhaps the best that John could reasonably hope for is an extension to the time allowed for filing petitions requesting that an Election Court be convened.
Even this would, inevitably, turn out to be a pyhrric victory as with the current media attention on this issue, only a total idiot would try anything at the upcoming election while knowing that the ‘world and its wife’ are going to keeping careful watch for the even the slightest whiff of sharp practice.
In one sense, John has already got his way as the very scrutiny that this election will be put under after the Birmingham case will ensure a clean, fair, fight - what he almost certainly won’t get, however, is either his day in court or the validation of his ego he’s seeking at present.
