The 2010 elections will be remembered not only for the cliff-hanging result of the Parliamentary elections but also for the scenes of chaos that took place at some of the country’s polling stations on election night as long queues meant many voters were excluded from exercising their right to vote as returning officers obeyed election rules and turned people away.
The legal position is that ballot papers cannot be issued after 10pm so that an individual who is inside the polling station or queuing outside but has not been issued with a ballot paper by the 10pm cut-off cannot vote. The failure of some polling stations to deal with the number of electors turning up to vote suggests that insufficient resources may have been allocated to ensure that everyone was issued with a ballot paper by the deadline.
As a result of these problems, the head of the Electoral Commission has called for reform of the framework governing the voting system on the basis that the Commission’s role is too limited and that it has no legal authority to tell returning officers how they should conduct elections. (The Political Parties, Elections and Referendums Act 2000, which established the Electoral Commission, gives the Commission statutory responsibilities in relation to elections and referendums but limits its role to that of an independent regulator of party and election finance and a provider of advice and assistance to electoral administrators and reporting on their performance.)
In addition to proposed reform, which will be a matter for parliament, the Commission has launched a review (which it has a statutory duty to do under section 5 of the Political Parties, Elections and Referendums Act 2000) to identify what went wrong on polling night in the affected constituencies and what needs to be changed to ensure that it doesn’t happen again. The terms of the review will cover:
- Not only the specific problems experienced by voters but how returning officers planned for polling day, managed the day and dealt with the problems that emerged as a result of high turnout.
- The impact of guidance, advice and support provided by the Electoral Commission.
- The factors that contributed to the problem, in particular whether the elections were understaffed to cut costs or whether staff were diverted from polling stations to deal with a late flood of postal votes. Returning officers in each constituency are responsible for ensuring that there are sufficient polling stations and for deciding the number of electors allocated to each station.
The Commission is aiming to publish an interim report at the end of this week, identifying the further work that needs to be done to ensure that the voting problems of the 6 May 2010 are not repeated in future elections, with a full report being issued by July 2010. Although in principle the Returning Officers’ failure to act or their omissions can have an effect on the overall validity of the elections if their actions or omissions affected the result, in practice it will be difficult to establish whether the overall outcome of the election was affected by the inability of some electors to vote.
However, a voter or a candidate can question the outcome of a parliamentary election under section 120 of the Representation of the People Act 1983 by petitioning the Supreme Court within 21 days of the polls closing (that is by 27 May 2010) although the £5000 sum that has to be paid into the Court Funds office as security for any costs they may be ordered to pay may deter individuals from doing so, see HMCS: I want to challenge the outcome of an election and How do I apply for relief on how to make an election petition.
The actions (or failures to act) of local authorities and returning officers are also open to challenge by way of judicial review. Aggrieved voters would have to bring such a challenge within three months of the relevant act or decision. Grounds for challenge, in addition to a failure to comply with statute, could also be based on issues such as a failure to comply with a legitimate expectation and to exercise discretion in a lawfully reasonable way. For PLC’s practical guide to judicial review, see Practice note, A practical guide to the judicial review procedure . Some commentators have also suggested that anyone who attended a polling station before 10 pm but was unable to vote may be able to sue for compensation of at least £750 under the Human Rights Act 1998.