Election Night Counts: The Electoral Commission Drags Its Feet

This election night count story just won't go away.

There are still plenty of councils who still won't say when they plan to count the votes. For some it is because of the recent confusion over what the new law says. For some I suspect they wish to avoid political pressure from local councillors. Others await guidance from the Electoral Commission, but if my research is right, they may well have a long wait.

By my calculation, if all the councils who have saidthey want to count on Friday go ahead with these plans i think that David Cameron would have to get a majority of around 100 to get to 326 seats before breakfast.

The following appears on the Electoral Commission website and is contained within their briefing note on the Report Stage of the Bill. It is the Electoral Commission which will have to publish the guidence as to what "reasonable steps" are, not the Ministry of Justice. Unbelievably, they refuse to do this until the Bill gains Royal Assent (assuming this is during the wash up in the last hours of the old parliament (on 8-9 April), this gives Returning Officers only 17 working days to reach a decision). It does seem to suggest, however, that the following are all possible reasons for counting on Friday.

1. Being rural
2. Having local elections
3. Not having enough money

It is still arguable that most councils could pick one of these categories, particularly if the election is on the same day as the local elections.

This is the relevant paragraph from the Electoral Commission:

"Developing and issuing guidance on the new duty to begin counting votes with four hours of close of poll. The Electoral Commission will issue guidance for Returning Officers on any changes to the Parliamentary Elections Rules as soon as possible once the Bill receives Royal Assent.

We do not believe that such guidance could - or should attempt to - anticipate all of the possible reasonable steps which might be taken by a Returning Officer in order to comply with the new duty imposed by this Clause, for a number of reasons:

* The extent to which steps taken by Returning Officers are considered reasonable will need to be determined on a case by case basis - e.g. what is considered reasonable for a compact borough constituency may not be for a more geographically disparate county constituency; what is considered reasonable for a constituency where there are no combined local government elections may not be for a constituency where the parliamentary election is combined with local government elections.

* In addition, what are considered to be "reasonable steps" will to a degree depend on the level of financial resources available to returning officers and, in particular, the extent to which they will be able to claim payment from the Consolidated Fund for additional expenses incurred in taking what they consider to be "reasonable steps".

To ensure Returning Officers are able to make decisions on the correct approach the Government should also clarify how it would assess whether any additional costs incurred in ensuring that the counting of votes begins within four hours of close of poll are reasonable, and amend its guidance notes for Returning Officers as appropriate. We will continue to work with all parties as the Bill progresses to seek resolution to these remaining issues."

Is it any wonder that EROs and Returning Officers may be a little confused. There is also something on the AEA website now. The headline is "Overnight Poll Count Proposals Eased". However within a couple of paragraphs it highlights the view of the MoJ that actually they're still tough.

This is the letter which the AEA recently sent round to Electoral Registration Officers. It seems to emphasise "freedom of choice" for Elections Officers.

"Dear x

I have received the following note from the Chief Executive which has been published on the website over the weekend but, in case you have not yet seen it and in view of its importance, I reproduce it below for all Members' information:-

"I have now received a letter from Michael Wills MP, Minister of State at the MoJ to explain the Government's latest position in respect of the amendment made to the Constitutional Reform and Governance Bill. As you will know, the purpose of the amendment is to require overnight counts at parliamentary elections.

The Minister's letter acknowledges the various comments that have been made since the amendment was passed. In that light, his letter explains that the Government, with the support of the Opposition front bench, has now tabled a further amendment to the Bill regarding the counting of votes at a Parliamentary election. This clause will now be debated at Report stage of the Bill on Tuesday, 2 March.

The letter explains that the amendment follows further discussions between the parties and also seeks to take account of discussions with the Electoral Commission and the concerns that the AEA has shared with MoJ officials.

The purpose of the amendment would be to delete the previous amendment and to replace it with a new clause which would provide that a Returning Officer must take reasonable steps to begin counting the votes given on the ballot papers as soon as practicable within four hours of the close of poll. The clause would require the Electoral Commission to produce guidance on this duty. Where the count does not begin within the specified time period, Returning Officers would be required to publish a statement within 30 days of the poll giving the time that the count began, explaining why it did not begin before 2 am. and setting out those steps that were taken. This statement would have to be provided to the Electoral Commission, who would be required to list those constituencies that did not start the count before 2 am. in its statutory report on the conduct of the election. The clause would apply to all Parliamentary elections (including by-elections) in future.

The amendment has yet to be published but when it is (probably on Monday), it can be found at:-

http://services.parliament.uk/bills/2009-10/constitutionalreformandgover
nance/documents.html

Although many would have preferred to keep the existing arrangements, I am sure that this situation is better than that which would have been the case if the previous amendment had survived. At least, it does restore the decision to the ARO and give them some freedom of choice in determining when best to undertake the count.

I have, of course, asked to be kept advised on developments and progress through Parliament although the answer to that, so far as the House of Commons is concerned, will be easily available from Hansard on Wednesday morning. The Bill with this amendment, if approved, will then transfer to the House of Lords."

Best wishes,
Nigel

Nigel Hurll
Website Manager, Association of Electoral Administrators

I don't think we have heard the last of this. To me it is appalling that the Electoral Commission is refusing to issue any guidance at all until the CRB receives Royal Assent. They appear to be quite willing to defy the wishes of the Government and the Opposition. It is a decision they may well come to regret