The Scottish Referendum - doubtful votes

16 September 2014

Remember the controversy about “hanging chads”, with holes not being clearly punched in a voting card? Depending on how the punch mark was made, there were even “swinging chads”, “dimpled chads” and “pregnant chads”.

There will be no mechanised punch holes or electronic voting at the Referendum, but there is still scope for dubiety when a vote is made.

The ballot paper asks the question “Should Scotland be an independent country?” There are two boxes, one marked "Yes" and one marked "No". 

The ballot paper should look something like this:-

Scottish Referendum - Ballot Paper

The voter should put one cross in the box beside their choice. It sounds simple.
The Chief Counting Officer has emphasised the need to follow those simple instructions so that each vote is clearly made.

However, apart from spoiled ballots, there is still scope for a vote being “doubtful”, with no simple cross in the “Yes” or “No” box.

Someone may put a tick instead of a cross. Someone may put “Y” in the “Yes” box, or “N” on the “No” box.

Someone may leave a mark which is a “Y” but looks like a cross, or vice versa. What if it looks like a “Y” in the “No” box, but it might have been an attempt at a cross in “No”?

Also, due to the history of single transferable votes in some Scottish elections with voting by numbers to show preference, there may even be scope for someone putting the number “1” in their preferred box, or even “1” in one box and “2” in the other.

Also, a ballot paper will fall into the “doubtful” category if it has anything unusual about it, including appearing to have been altered, either with a clearly different writing instrument or with correction fluid. That is important as people will be expected to vote in pencil, but some may prefer to vote using a pen. However, a ballot paper marked by means other than a pencil will most probably not be rejected simply for that reason.

Therefore, as part of the count of “Yes” and “No”, there will also be papers counted as "doubtful". 

Those "doubtfuls" will require to be adjudicated. The adjudication will be on a rolling basis during the count, and not left until the end. A considered decision must be made in each case, and in a clear and consistent way.

The primary issue is whether or not the mark on the paper clearly indicates the voter's intention.

A ballot paper on which the vote is marked elsewhere than in the proper place, otherwise than by means of a cross, or by more than one mark should not be rejected if, in the CO’s opinion, the mark clearly indicates the voter’s intention.

What would “clearly indicate” a voter’s intention?

Examples may include one cross not fully in one box (but mostly); a tick in one of the boxes; the circling of either “Yes” or “No”; both a tick and a cross in one section of either “Yes” or “No”; a cross in one box scribbled or scored out and another clear cross in the other box; a line scoring out one section of “Yes” or “No” and a cross in the other section’s box or nothing at all in the other section; the words “Yes” or “No” written anywhere on the front of the ballot paper.

Writing the Gaelic “Bu choir” for “Yes” in that box could be taken as a “Yes”, but “Cha Bu Choir” in the “Yes” box could be counted as a “No”.
Even writing “Yes” in the “No” box could be taken as a “No” vote, (that is, the person positively wishes to express a “No” by writing “Yes” there).

Also, writing “No” in the “Yes” box could be taken as a “No” vote, (that is, expressing a negative response to “Yes”).

So, writing “Yes” in the “Yes” box and also “No” in the “No” box could be taken as a “Yes”, but writing “No” in the “Yes” box and also writing “Yes” in the “No” box could be taken as a “No”.

In keeping with modern times (and perhaps also recognising younger voters in the process), a “smiley face” or emoticon in a box could even be taken as clearly indicating the voter’s preference. Therefore, a “smiley face” in the “No” box could be taken as a “No”, but if there’s a “smiley face” in one box and a “sad face” in the other box, the one with the “smiley face” could be taken as the voter’s intention.

Where the intention is not clear and there has been a vote for both choices, such as a cross in both boxes, writing “Yes” in the “Yes” box and a cross in the “No” box, a cross in the “Yes” box and a tick in the “No” box, or crossing out the word “Yes” with no other mark elsewhere, the ballot paper may well be rejected. This includes a “sad face” emoticon in one box alone (with no other mark elsewhere), which may mean a vote for that option (although unhappily), or it may express disapproval and thus a non-vote for that option. Thus, the voter’s intention would not be clear.

A ballot paper could be rejected if a voter writes “No” in the “No” box. That could be a positive vote for “No” or it could be a negative response to “No”. Again, the voter’s intention could be viewed as unclear as to which way it should be interpreted.

Examples can be seen at this link in The Chief Counting Officer's Guide to Dealing with Doubtful Ballot Papers :-

The adjudication of the "doubtfuls" will be by the local Counting Officer or an authorised depute.

If a ballot paper is not adjudicated to be a "Yes" or a "No", then it will be stamped as "Rejected".

Counting agents are allowed to see any ballot papers that the CO or a depute intends to reject.

The CO should draw up a statement explaining how many papers were rejected and for what reason.

The categories of reasons could include papers which do which do not bear the official mark; those which indicate a vote in favour of both answers; those on which anything is written or marked by which the voter can be identified (other than the unique identifying number); or a paper which is unmarked or void for uncertainty.

Having said that, as long as the voter cannot be identified from the "doubtful" ballot paper, then if the intention is clear, a paper should not be rejected simply because the mark is elsewhere than in the proper place, or the mark is not a cross, or there is more than one mark.

If declared valid, then the paper must be counted as either a “Yes” or a “No” depending on how it has been adjudicated.

The total number of each category is counted, to match the total number of the first count. That is, the "Yes", "No" and "Rejects" together will all add up to the total number of papers which were to be counted.

If a ballot paper is rejected and a counting agent objects to a paper being rejected, the CO will stamp it as “Rejection Objected To”. Other observers cannot object. Therefore, a paper could carry two stamps of "Rejected" and "Rejection Objected To".

The decision of the CO, or authorised depute, on any question arising in respect of a ballot paper is final, (subject to a judicial review in terms of the Referendum legislation).

Once all the votes have been counted and doubtful ballot papers adjudicated and the result known, the CO will prepare a Statement of Provisional Totals and send a copy to the CCO.

Once authorisation is received from the CCO, the provisional totals will be shared with any Referendum agents present. This is the opportunity for agents to request a recount. The CO must consider any recount requests but does not need to grant them if they are considered unreasonable.

If no recount is requested or a recount is requested and the request is denied, the CO will send formal certification of the result to the CCO.

The CCO will check the figures that have been sent and authorise declaration of the local total. Once the CO has done that, the local count is over.

It remains to be seen how crucial the number of “doubtful” and “rejected” papers will be in the overall result and if any challenges will be made.

It is hoped that the voters will follow the clear instructions on the ballot paper by putting a cross in the box beside their choice, thus avoiding the Scottish Referendum’s own version of the “hanging chad” controversy.

Our Gus Macaulay deals with all kinds of disputes and controversies. Contact Gus on 0141 229 0880 or send Gus an email if you need advice about any debt recovery, commercial or family law disputes you need sorted out.

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