AEC Obfuscates on Voting Rules

Update: Antony has kindly clarified his reasoning in a comment on this article, and so I have now sent a follow up query to the AEC based on this.

Update 2: After much too-ing and fro-ing (see the comments) with Antony Green and the AEC it appears that the AEC would rather obfuscate on the whole issue than bring clarity to it, and Antony makes a very convincing case about why it is valid to do both. What I’d love to see is a comment from someone involved in the voting process with one of the OIC guides to confirm that it says that those votes are handled as Antony says. I somehow doubt anyone would dare though.. 🙁 After that enlightening discussion with Antony I’ve changed the title of this article from “Do Not Vote Both Above and Below the Line in the Senate! (Updated)” to “AEC Obfuscates on Voting Rules” as that seems to be fairer to both Antony and the AEC. 😉

Update 3: Just found this on the AEC website describing how voting works:

However, if the elector completes both sections formally, the below the line section takes precedence.

So it is really valid, despite what the AEC have been telling me! Thanks to “GetUp!” for providing the link to that AEC page on their voting page.

Last month I saw a blog article by the ABC’s election expert Antony Green on (literally) how to vote in an Australia election. For those who aren’t aware in the Australian Senate election you can vote either for a party ticket (i.e. a pre-lodged agreement on how preferences will be distributed) “above the line” or you can number every candidate in your order of preference “below the line”. Now given that there are many senate candidates (60 in our area) that’s a lot of work to do, and get right, especially as there are some right nutters out there.

But Antony seemed to offer a way to have the best of both worlds by voting both above and below the line:

A below the line takes precedence over an above the line vote. However, an advantage of voting above and below the line is that if your below the line vote works out to be informal, then your above the line vote will stand instead. If you are unsure of your ability to number dozens of preference in a correct sequence, you might find this a useful option to ensure your vote counts.

Great, I thought, and then this week I thought I’d check out the AEC’s own site to try and find more information to support this. I failed. I did find though that they had a neat Flash based tool to practice voting with, but that flagged my senate ballot as informal (invalid) if I voted both above and below the line. This perplexed me, so I emailed the AEC’s contact address. First of all I got a boilerplate reply, but I persisted and got the following advice from the AEC:

On the Senate ballot paper, you can either vote above the line or below the line, but not both.

Their response clarifies that by listing the general ways a ballot can be informal (their emphasis):

A Senate ballot paper is informal if:

  • it is unmarked
  • it has not received the official mark of the presiding officer and is not considered authentic
  • it has writing on it which identifies the voter
  • the voter’s intention is not clear

It appears this information from the AEC is wrong as it is contradicted by their own website, which says:

However, if the elector completes both sections formally, the below the line section takes precedence.

So sadly it appears that Antony Green’s advice is wrong, you must choose either to vote above or below the line, but not both.

If you would like to vote below the line but feel intimidated then I’d suggest looking at the “Below the Line” website which lets you select a parties ticket from your electorate and then rearrange the order and print it out (or save it as a PDF).

12 thoughts on “AEC Obfuscates on Voting Rules

  1. You have just received the standard AEC response quoting the normal sections on informal voting. It doesn’t deal with the relevant section fo the Act, and I very much doubt they want to talk about the relevant section.

    The situation of dealing with Senate ballot papers is set out in Section 269 of the Act. Section 269 (2) rather unclearly states that if the vote is marked both above and below the line, and the below the line vote is formal, then the below the line takes precedence, deeming the above the line mark not to have been made. Section 269(2) resolves the voter intent by specifying that the below the line vote be used.

    If the below the line vote turns out to be informal, Section 269(1) kicks in to prevent the vote being declared informal, as a vote can’t be informal if it has a valid above the line vote.

    This happens, as in the Senate Count report at every Federal, there are a few hundred votes that revert to being a ticket votes because the below the line vote is informal. If a vote marked above and below the line was informal, then below the line votes that are informal couldn’t become formal above the line votes.

  2. Hi Antony, thanks for finding this and taking time to reply!

    I did get a pro-forma response at first, but it was when I responded to that asking for a specific answer that I got the fairly clear “No” response quoted in the article. So now I’m really puzzled – why on earth would the AEC say that such a vote would be informal if the law says it should be valid ? More importantly, what would happen when they are actually counting them ?

    I will follow up my query to the AEC based on what you’ve said and see what they respond with.

  3. You’ll get another pro-forma. I’m telling you, from dealing with very senior people who wrote the act, that Section 269 was included in 1984 to prevent ballot papers completed both above and below the line from being declared informal. Every state act has the same provision, giving priority to votes cast below the line, and saving the vote to the above the line option.

    The AEC will always reply with the provisions of Section 239 and 268 concerning the formality of votes, because they want you till fill in the ballot paper as outlined in the ballot paper instructions. They are not going to tell you that you can vote contrary to the instructions on the ballot. They have to educate millions of voters and they don’t get into debates about this sort of issue because it can only confuse their message. They will not give you the answer in writing, they will quote Sections 239 and 268 at you, and maybe suggest you get legal advice on the meaning of Section 269, which is always the easiest way to scare people off.

  4. Thanks again Antony; this does make me wonder (if they do maintain that you can’t do this despite the legislation) who has oversight of them and to whom I can query their interpretation ? I’ve got a horrible feeling that the answer is likely to have the word “court” in it..

    I also wonder if there is any way to tell if actual ballot papers filled out in this manner are marked informal or not during a real election (which is what really matters, independent of what the AEC say) ?

  5. They are not marked as informal. During the computer scrutiny, a small number of informal below the line votes become above the line votes by the operationof Section 269. It’s in the AEC batch data entry reports, every batch has a total entered, a total of ATL, a total of BTL, and an entry for BTL reverting to ATL. The AEC’s legal interpretation is that votes marked above and below are first treated as BTL, and if this is informal, as ATL.

    At the 2007 election, when I wrote exactly the same guide, I had someone attacking me in exactly the same way you are. They contacted the AEC who said you had to vote above or below the line. So I contacted the relevant people in charge at the AEC who re-confirmed my interpretation of Section 269, which is the provisions is there to give an order of priority for counting ballot papers marked above and below the line.

    Section 239 of the act is the provision governing formal votes, but 269 and 270 are savings provision. But if you ask the AEC for information of formal voting, they will quote 239, not give you an interpretation of what they will allow under 269 and 270.

  6. Hi Antony,

    I’m worried that you think I was attacking you, it certainly wasn’t my intention for you to feel that, this is just me trying to work out what’s actually the case regarding the rules! I work in IT and my impression of journalistic accuracy is coloured by the generally dreadful reporting that happens there; I’ve seen a few projects that I know the details of which, if it wasn’t for the fact that they mostly get the names of the organisations right, I just wouldn’t recognise (or don’t even make any sense). Thus I try and check what I see reported in the press with the people who should know. Of course this assumes that the people who should know are providing me with accurate information… :-/

    Currently your primary source trumps their unsupported statements. 🙂

  7. This is what I got back from the AEC today..

    Dear Chris
    Thank you for your email checking out details for 'above the line / below the line'
    Subsections 239(1) and 239(2) of the Commonwealth Electoral Act 1918 (Electoral Act)
    (1)     Subject to subsection (2), in a Senate election a person shall mark his or
    her vote on the ballot paper by:
            (a)     writing the number 1 in the square opposite the name of the
    candidate for whom the person votes as his or her first preference; and
            (b)     writing the numbers 2, 3, 4 (and so on, as the case requires) in the
    squares opposite the names of all the remaining candidates so as to indicate
    the order of the person's                     preference for them.
    (2)     A vote may be marked on a ballot paper by writing the number 1 in a square
    (if any) printed on the ballot paper under subsection 211(5) or 211A(6).
    Subsection 239(1) and subsection 239(2) set out how a person must mark his or her
    Senate ballot paper. Subsection 239(2) refers to the provisions of the Electoral Act
    that allow for boxes above the line for groups and incumbant Senators.
    Section 269 of the Electoral Act to which you refer below is a 'savings provision'
    so that ballot papers that would otherwise be informal are 'saved'. This section
    does not provide for the law for how Senate ballot papers must be completed.
    Hope this answers your question.
    Australian Electoral Commission

    I’m not sure, but I think that means that they agree with you, in that the section 269 means a paper that would otherwise be informal could still be regarded as formal. But it’s gone midnight (again) and my brain is full from supercomputers again..

  8. It would appear so – so I’ve added another update to the start of this article and changed the title to “AEC Obfuscates on Voting Rules” to more accurately reflect the outcome of this discussion.

    Thanks so much for participating Antony, very enlightening!

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