On election night Ruth Davidson admitted that Better Together were centrally monitoring the postal votes as they were being opened in the weeks leading up to election day. With 18% of votes posted in, access to this information is strategically valuable to the campaigns, but also to anyone betting on the result. As in other elections, agents from the campaigns can attend the opening and verification of the postal votes to ensure correct procedures, but it is an offence under the Scottish Independence Referendum Act 2013 for a campaign’s agent to “attempt to ascertain at the proceedings in connection with the receipt of the ballot papers the outcome for which any vote is given in any particular ballot paper or communicate any information with respect thereto obtained at those proceedings”. As the number of postal votes has expanded, the attraction of opening votes earlier increases for the returning officers to smooth out the workload, and the value of the information increases for campaign managers.
This is how Davidson described Better Together’s postal vote monitoring when talking to the BBC’s journalist Glenn Campbell on the BBC 1 Scotland referendum results programme at 22.45 on 18th September.
Davidson: I am glad that you mentioned ballot boxes being opened. Postal votes are going to be enormously important in this campaign. About 18% of the vote is going to come out of postal ballots. We’ve had people at every sample opening around the country over the last few weeks. We’ve been incredibly encouraged by the results from that. There are caveats. That it is more often elderly voters, more often more organised voters. But I have to say that going in to today, I think from the postal votes that were cast, our side would have had a lead and I think that we have a confidence, I hope a quiet confidence, that the quiet majority of Scots have spoken today.
Glenn Campbell: But, is it not the case that while postal votes are verified, they are not actually opened until 10 o’clock on the night?
Ruth Davidson: Well, they are not counted till 10 o’clock on the night, but different local authorities had openings around the country. It is illegal to discuss any of that while a ballot is ongoing. So until 10 o’clock no one could talk about it. But there are people in the room who have been sampling those ballot boxes, taking tallies, and their reports have been very positive for us.
The inference is that agents were using the opportunity of attending the opening of postal ballots to sample the ballots to estimate the vote proportions and feed back “reports” to others in the campaign. Notably, none of the other politicians on the panel (Danny Alexander, Humza Yousaf and Patrick Harvie) or the tame academic (Professor Jeffery) objected to this, which might mean that all parties are taking tallies of votes at postal vote openings.
The procedure for opening postal vote envelopes is described on the Elections Scotland website. Most of the processing is done with the papers face-down, but postal vote agents who are present will see some of the fronts of ballots as they are removed from the envelope, unfolded and placed face-down.
The relevant legislation is the Scottish Independence Referendum Act 2013, Schedule 7.7.d :
7)Every person attending the proceedings in connection with the issue or the receipt of ballot papers for persons voting by post in the referendum must maintain and aid in maintaining the secrecy of voting in the referendum and must not—
(a)except for a purpose authorised by law, communicate, before the poll is closed, to any person any information obtained at those proceedings as to the official mark,
(b)except for a purpose authorised by law, communicate to any person at any time any information obtained at those proceedings as to the unique identifying number on the back of any ballot paper sent to any person,
(c)except for a purpose authorised by law, attempt to ascertain at the proceedings in connection with the receipt of ballot papers the unique identifying number on the back of any ballot paper, or
(d)attempt to ascertain at the proceedings in connection with the receipt of the ballot papers the outcome for which any vote is given in any particular ballot paper or communicate any information with respect thereto obtained at those proceedings.
One implication of Better Together monitoring postal votes as they were opened is that when the decision was made by Better Together to send the three Westminster party leaders to Scotland and publish their “Vow” in the Daily Record, this might not only have been a response to a stray Yougov poll, but might also have been influenced by knowledge of the split in postal votes, although this was knowledge that they legally should not have had access to.