The vote is every free man’s right. It is the chance for every adult citizen to participate in choosing his—or her—government. To turn out the pack of rascals who are misgoverning us and to elect—well—a different pack of rascals. We have fought wars to preserve this right and are proud to have done so.
But, if you come to think about it, voting is not very exciting in itself. It wasn’t always that way. Art lovers will be familiar with Hogarth’s great series of paintings The Election, based on a notorious election in 1754 in Oxfordshire, of all staid counties. Picture three, The Polling, shows the electors casting their votes. Many are blind drunk and there seems to be someone casting his vote posthumously, in his winding-sheet.
Fans of Mr Pickwick will recall the famous Eatanswill election. The candidates are Mr Slumkey and Mr Fizkin, and Pickwick’s solicitor Mr Perker is the election agent for Slumkey:
And what is the likely result of the contest?” inquired Mr Pickwick [of Perker].
Why, doubtful, my dear sir, rather doubtful as yet,” replied the little man. Fizkin’s people have got three-and-thirty voters in the lock-up coach-house at the White Hart.
In the coach-house!” said Mr Pickwick, much astonished.
They keep ’em locked up there till they want ’em,” resumed the little man. The effect, you see, is to prevent our getting at them. Even if we could, it would be of no use, for they keep them very drunk on purpose. Smart fellow, Fizkin’s agent—very smart fellow indeed.
Those were the days! None of this nonsense about universal suffrage, still less any rubbish about secret ballots. The sturdy English voter is no man’s poodle. He declares his vote in a loud clear voice to the Returning Officer and shames the Devil. With reasonable luck some enterprising candidate will have bribed him handsomely or at the very least filled him up with good ale. If he is unlucky, the Squire will have told him that if he votes the wrong way he will be turned out of his cottage and left to starve. Great times.
But those days are gone. Voting nowadays involves the British citizen traipsing down to his local polling station, roughly once every three years for local elections and every four or five years for general elections. In some drab municipal building—the local primary school as like as not—a bored polling official looks at his voting card, ticks him off on the electoral roll for that polling station and hands him a ballot paper. The voter creeps into a makeshift booth, rather like a small telephone box from which vandals have removed the phone, and studies the runners and riders. Eventually he makes his choice—or choices in a multi-seat local ward—and marks his cross with the stub of pencil attached by a piece of string to the desk. Out he comes and pushes the folded ballot paper into the sealed ballot box. On the way out of the polling station he may conceivably be molested by pals of the candidates demanding to know which way he has voted, but he may choose to keep mum. And that is the elector’s civic duty done for another year. What excitement! But scarcely a mighty effort or inconvenience.
In most democracies—Australia is an exception—voting remains voluntary. If the citizen does not turn out to vote, he commits no offence. Indeed nobody official will ask him—is allowed to ask him—why he hasn’t voted. Of course, if you don’t vote, you can hardly complain if the wrong pack of rascals gets elected, but most non-voters don’t really care.
The abstention figures are pretty constant across the range of the developed democracies. In rough terms, national elections produce a percentage turnout in the low sixties and local elections in the low to mid-thirties. True to the principle that the English and the French always do the opposite, we consider the percentage voting and the French the percentage abstaining. Slice it how you will, however, the brutal fact is that, absent compulsion, one in three voters refuses to vote for the Parliament or, in France and the USA, the President, and two in three refuse to vote for their local councillors. It must sometimes seem that it was scarcely worth fighting to preserve democracy. If it were a product in a supermarket the manager would take it off the shelves.
Why is this? Voter abstention—or, to be brutal, voter apathy—is very worrying to the professional politician. The true reason is probably the fact that the abstainers are indifferent to politics or even turned off by them. How often does one hear people say of politicians, “They’re all the same: all on the make or on the take: one party is no better than any other”? The voters are not engaged in the democratic process because they feel that there is nothing to engage them. They will travel miles on a dismal Wednesday evening in January to watch a second-rate football team play a match in pouring rain and think they have had a good night out, but ask them to walk half a mile to the local polling station once every so many years and they can’t be bothered.
Many politicians are in denial about this voter apathy. How can the voter be apathetic, thinks the politician, faced with all these vital issues which I and my fellow politicians feel so passionately about? How could they be disillusioned with us? There must be some other reason.
At this point, the siren voice whispers in the politician’s ear: “They aren’t voting because it’s too difficult, too troublesome, too inconvenient. If you only make voting easier, voter numbers will increase.” And, no matter what the political stance of the politician, from fascist through to Maoist, the siren voice also says: “And the new voters will vote for you.” And the Faustian compact is signed.
In the UK this compact took the form of introducing postal voting on demand, which came into force for the elections of 2001. All the main political parties supported it. Anecdotal evidence suggests that each of the major parties thought that it would benefit from the change.
The Labour Party, currently in government, is firmly of the view that postal voting on demand is helping it do well at the polls. The reasoning is that Labour draws its core voters from the lower income groups and they find it easier to vote by post than to go to a polling station. Given that the bureaucratic paperwork needed for postal voting is horrendous and complicated, it is surprising that anyone would regard this as more attractive for the less well-off and the less well-educated, but this belief is firmly entrenched in Labour minds.
The Conservatives reason that, whereas the less well-off, particularly the unemployed and those registered as unfit to work (who represent a huge proportion of the UK electorate) have nothing better to do than vote in person, postal voting will attract the busy, better-educated middle-class who will not be put off by the paperwork but will relish the convenience.
Considerable academic research into the subject has shown pretty conclusively that postal voting does not significantly help any political party—but what do academics know?
The next belief is that postal voting has significantly increased voter turnout. Pausing there, if, as is sadly the case in the UK, postal voting fraud is rife, any statistics must be pretty meaningless. If you don’t know how many postal votes are completely bogus, you cannot say whether postal voting has increased genuine overall turnout or whether any increase merely represents the fraudsters’ activities.
But has it increased turnout? The last general election before postal voting was 1997 when Mr Blair achieved his landslide. At that election the turnout was very high—71.4 per cent (though lower than the 1992 general election—the drop to the 60 per cent mark is a phenomenon of the last decade and a half). By 2001—the first general election with postal voting on demand—the turnout had fallen to 59.4 per cent. Not a very good advertisement for postal voting on demand. In the 2005 election it rose to 61.4 per cent but, as voter fraud was by then endemic, it is hard to know whether this small rise represents genuine postal voters, bogus postal voters or simply reflects the fact that turnout at general elections tends to fluctuate by about 2 or 3 per cent depending on the issues involved.
So to anyone thinking of introducing postal votes on demand I would say first, if you think it will benefit your party, whether you are deepest red or true blue, you are probably going to be disappointed. I would say second that, in any country with voluntary voting, the evidence of the effect of postal voting on demand does not support the thesis that it will increase voter turnout. It clearly doesn’t.
There would seem to be very little point in changing to postal voting on demand even if you could be totally sure that significant electoral fraud was impossible. In a country where voting is compulsory, I can see no point whatsoever. If you are made to vote, then the convenience of the voter is obviously of no account anyway.
The principal problem with postal voting—whether on demand or otherwise—is that no means can be devised to guard against serious and organised fraud. The British government has tried—not very hard—to devise such a system, but the changes brought about in response to the election cases where I have exposed massive fraud have been minimal. In the Birmingham election case, I identified some fourteen types of fraud capable of being perpetrated with postal voting (though some were cumulative rather than free-standing) and in the Slough election case I dealt with the fifteenth type, that dear old fraud well known in all democratic systems, where I shamelessly purloined the Australian term “roll-stuffing”. The changes introduced by our government in 2006 dealt with one of the fourteen frauds but no more. The other thirteen and roll-stuffing, like John Brown’s soul, go marching on.
At the risk of boring you rigid, may I briefly explain how postal voting works in the UK? The voter registers himself as a postal voter by writing to the electoral officer at the town hall. Once he does this, he will be sent his postal voting papers for each election and will not be allowed to vote in person at a polling station unless he cancels his postal vote. When applying for a postal vote he must supply the elections office with his date of birth and a specimen signature.
When the voting papers are sent out, they consist, in essence, of a ballot paper and a personal voting statement. In the UK all ballot papers are numbered and the number of each ballot paper sent out is logged against the voter to whom it is sent. The personal voting statement carries the same number as the ballot paper. The voter completes the personal voting statement with his date of birth and a signature (confirming that he is the person entitled to exercise the vote on the ballot paper) and sends the statement with the ballot paper back to the elections office. At the elections office, the returning officer’s staff checks that each ballot paper has a corresponding personal voting statement and that the date of birth and signature on the statement match those sent in by the voter when he first asked for a postal vote. If the documents pass those tests, the ballot paper goes into a sealed box and is counted on polling night.
Those amongst you with an ingenious mind will already have spotted a number of ways to cheat that system. The system depends on a number of assumptions. First, that the voter whose name appears on the register exists. Second, that the voter lives or rather still lives at the address given, which in turn assumes that he exists, has not moved or has not died. Third, it assumes that the person applying for the postal vote is the voter himself and not someone using his name. Fourth, it assumes that the person who receives the postal voting documents is the person who applied for them. Fifth, it assumes that the person who completes the documents is the person who applied for them. Sixth, it assumes that the documents that reach the electoral officer are the same documents or in the same state as the documents that left the voter.
The system has so many holes you could use it to strain vegetables. When I tried the Birmingham election case in the spring of 2005, the system then prevailing did not have the postal voter supplying his date of birth or signature and the postal voting statement needed to be witnessed. This is the one loophole now stopped up.
What is to stop you applying for a postal vote for a voter you know is dead or has moved away? Nothing. When you register to vote, no checks of any kind are made as to your address or indeed existence. Once you are on the register, you tend to stay there. If you move house and re-register in your new area and if (quite a big if) you have filled in your new registration form with your old address correctly stated and if (another big if) the national system is working properly, the new registration authority will tell the old registration authority that you have moved and you will be taken off the old register. If you move abroad or don’t re-register in your new home or simply drop down dead, your name may stay on the register for ever.
Once a year, the registration authority sends each household a form, printed with the names currently on the register against that household. The householder is invited to add or amend as necessary but, if there is no change, all he need do is sign the form and post it back or, nowadays, register online. No check is carried out on the identity or signature of the person filling in the form—no check can be carried out on the person who registers online. It goes without saying that no check is carried out on the contents of the form. You could register Mr Michael Mouse and Mr Donald Duck and no one would notice, still less care.
But assume that the absent and the dead are insufficient for your purposes. You then register bogus names on the register. Any application received by the electoral office up to eleven days before the poll will mean that the name goes on the register. The elections office will not check—indeed does not have the resources to check.
By examining the electoral roll, which is a public document, you can quickly find out whether the absent or dead voter asked for a postal vote and, if not, you can do it for him. No questions will be asked. Naturally, with a bogus voter you have invented, you will automatically ask for a postal vote. And the beauty of the system is that once you have sent in the fraudulent application for a postal vote, you control the date of birth and signature. Provided you keep a photocopy of your application, you are in business.
Aha, you will say, but surely the postal vote would be sent to the address of the voter. How do you get hold of it to fill it in? Simple. Assuming you don’t have access to the home of the fake voter, you merely ask for the voting papers to be sent to a different address. Yes, you can do that, and make your false vote in the comfort of your own home. Before 2006 you could get the ballot paper sent to an address different from that of the voter without giving a reason. Now you have to give a reason but—you’ve guessed it— nobody checks up on the reason. So if you put “staying with relative” or “working away from home” you can get the voting papers sent to the other end of the country and nobody will mind.
The fact that you can get voting papers sent to an address different from the voting address enables you to steal the votes of entirely genuine voters. This was the particular scam that worked in Birmingham. Get a copy of the voting register and note who has applied for a postal vote. Often whole streets will not have applied for one. Well, that can be remedied. You and your friends apply for a postal vote for these voters, taking good care to choose voters who may not be very well-off or well-educated—better still, voters from an ethnic minority which may have poor English-language skills. Once again you control the date of birth and signature. When election time comes, you are sent their ballot papers and you fill them in. Quite often (and this happened a lot in Birmingham) the hapless voter turns up at a polling station on election day only to be told by the staff: “Sorry, mate, but you’ve already voted by post.” In the 2005 election this happened to one of the BBC’s most feared presenters—John Humphreys of the Today program—and boy, was he mad!
Of course some of what I may call the rougher element can resort to simple theft. When the postal votes are sent out, a kindly man comes to your door and says: “Why not let me take them to the town hall—its part of the service that we of the Radical Party offer voters. It doesn’t matter if you haven’t voted for us: we’re pretty broad-minded and are true democrats.” The gullible voter will think: well, this saves me flogging down to the postbox; and he hands over the votes. The kindly man then goes back to his base and steams open the papers. If the voter has voted the right way, then good on him. If he has voted the wrong way, you have a choice. You can just drop his ballot in the wastepaper basket or, as was done in Birmingham, you can cross out the votes for the Diehard Party and substitute votes for the Radical Party. Provided a ballot paper shows a clear intention to vote for someone, it will be accepted. In Birmingham between 100 and 200 votes were altered in this way.
Or you can be a real larrikin and waylay the postman when he empties the postbox. A little gentle persuasion of the physical type or, in the case of Birmingham, a mere threat to report the postman as an illegal immigrant, is sufficient for the postman to hand over his nasty heavy bag full of postal votes.
So the choice is yours. You can use fictitious voters, you can use real but absent or dead voters, you can use real voters who have not asked for a postal vote or you can steal the real voters’ ballot papers and destroy or alter them.
The cases I tried are only the tip of a murky iceberg. It is only when the fraudsters are incompetent, or careless, or too greedy or too blatant that anyone notices. Who’s to notice in the first place? It still remains primarily the task of the other candidates to try and discover that fraud is going on and bring an election petition. But a petition is hugely expensive. It must be launched within three weeks of the election and a petition once launched cannot easily be amended. The burden is on the petitioner to prove his case and, if his case is based on corrupt or illegal practices, he must prove it to the criminal standard of proof—beyond reasonable doubt.
The police are getting better. In Birmingham, they simply didn’t want to know. When the opponents complained, they shoved all the complaints in a file labelled “Operation Gripe” and forgot about them. As you may imagine, my judgment was somewhat acid about the insouciance of the West Midlands Constabulary! This caused the police to pull up their socks, and now each force has at least one designated officer from what used to be called the Fraud Squad—now the Economic Crimes Unit—to handle election complaints. But they too are hampered. Proof of fraud requires the gathering of a great deal of evidence and the examination of large numbers of documents. When I embarked on the Birmingham case, I had to conduct a formal examination of the documents, called the scrutiny, in which the ballot papers and supporting documents were sorted and catalogued. This took over nine working days for myself and a team of six court enumerators. Only at the end of this process did we have the material to go to the next stage, which was to have dubious documents examined by handwriting experts. Their reports took time and cost money. True, in the end, it showed that in both the two wards, roughly half of the 4000-odd votes cast for each of the three winning candidates were completely bogus. And this is in an English city, not Zimbabwe or Afghanistan.
It took a great deal of persistence on the part of the petitioners and their advisers and a great deal of public money to achieve this, and to do so in the face of strong obstruction tactics by the Labour Party including repeated attempts to bully me into adjourning the trial until after the date of the coming general election, not least by withdrawing all legal representation from their own clients a week before trial.
The returning officer has no power to investigate fraud. Even though the police in Birmingham were supine, in fairness they would not have had the resources to put into the case that the petitioners ultimately did. In a large, rough city like Birmingham there are always much more heinous crimes to investigate.
At least now, once the election court has pointed them in the right direction, the police will act. When I concluded the Slough case and made my findings that the successful Conservative candidate had put sufficient ghost voters on the electoral register to secure his election and had, with his pals, committed massive perjury in court, the nice detective sergeant who had been sitting in court throughout looking thoughtful stopped the by-now-ex-councillor outside and suggested that he and his friends might like to accompany him down to the police station. A Crown Court judge later put them inside for three to four years. But these successes are rare. Most fraud goes undetected and unpunished.
In essence, the main tool is and remains the election petition—a private law civil action. If I may be permitted to quote my Birmingham judgment:
To suggest an analogy, consider the Olympic Games. Drug abuse is a constant problem. Let us for a moment assume that
a) the International Olympic Committee does not have the power to control drugs or to order drug tests (and thus no power to disqualify abusers);
b) the police will only act when someone presents them with a clear case of drug use and, even then, have only limited powers, after the event, to seek drug samples;
c) the only real remedy is an action in the civil courts by the losers against the winners in which the losers would have to prove drug abuse to the criminal standard of proof by assembling evidence long after the race has been run.
If all that were the case, one would expect drug use to be universal among athletes at the Games. The race would not be to the swift: it would be to the country with the best chemists.
So what is to be done? I regret to say that there is only one thing to be done and that is to accept that all forms of easier voting are wide open to fraud. There is no practicable way of preventing it. Detection is difficult and very expensive and most of the systems for detection are archaic, cumbersome and entirely dependent on the assiduity of the losing candidates.
If, of course, postal voting brought measurable public advantages—and I stress the word public—not advantages to one party out of many—then fraud might conceivably be a price worth considering to obtain those advantages. But it does not bring any public advantage and in a country with compulsory voting it could never do so.
I have not touched on electronic voting. Adopt electronic voting and you abandon your electoral system to the party with the smartest techies. You might as well use the downtime on the National Lottery computer to select your MPs.
Let me end with a very good example of what I mean by saying that the way to increase voter turnout is to engage the public rather than to fool around with the voting system. In the spring of 2007, France was electing a new President. Historically the turnout for national elections in France is much the same as in the UK, the USA and the other developed democracies—a percentage in the low sixties. In 2007, however, the electors of France got interested in their presidential election with its twelve candidates ranging from the mainstream to the wildly eccentric, and almost 85 per cent of the electorate voted. And this was in a country which has personal registration of electors and personal voting, with no postal votes. The difficulties of voting in person at the town hall seem not to have deterred these voters. Six weeks later, in the elections for the National Assembly, the percentages were back at the Western democratic norm of around 60 per cent.
In short, it’s not the voting method that brings out the voters. It’s the choices they are given.
Richard Mawrey QC is a legal scholar of forty years experience at Henderson Chambers, London. His work as an Electoral Commissioner in British local authority elections has exposed serious electoral fraud in the UK. This is the text of a talk he gave to MPs and Senators in the theatrette of the Federal Parliament, Canberra, on February 22.