The Defamation of Ruth Davidson?

On Monday I posted about Ruth Davidson’s comments on the counting of postal votes, posted a video of the comments on Youtube, made a complaint to Police Scotland, emailed the Electoral Management Board Scotland and emailed the Electoral Commission. Having lit the blue touch-paper, I retired to a safe distance. The Electoral Commission have today intervened to request a police inquiry.

In three days the video has been viewed over 36,000 times and the blog post viewed over 4,000 times. Diverse comments came back, many of them sadly homophobic and/or misogynistic. Just to be clear, there is no implication that Ruth Davidson has broken the law, but there is an implication from her comments that anyone who sent postal vote agents out to count postal votes was acting illegally, and each of those agents would also have been committing an offence.

Both Police Scotland and the Electoral Commission responded professionally to my complaint, but the response of the Electoral Management Board, who are the body most directly involved in coordinating the referendum, has been less than exemplary. To be fair to them, last Monday they were dealing with a slew of complaints triggered by things people had seen on videos of the counts, so were probably in a defensive frame of mind. When I raised Davidson’s comments with a representative of EMBS, their response was that counting postal votes would be illegal, but Davidson must have been misled because all postal vote agents sign a declaration of secrecy, so it can’t have happened. It is hard to argue with this sort of Kafkaesque circular logic. On Monday Mary Pitcaithly, the convenor of EMBS and chief counting officer for the referendum, released a statement that she was “satisfied that all counts throughout Scotland were properly conducted and scrutinised”. The EMB website still says “I am satisfied that all counts were conducted properly”, while in a nearby parallel universe the Electoral Commission believe there are sufficient questions to justify a police enquiry. EMB should have launched their own inquiry and not have left it to the Electoral Commission to trigger an investigation.

In the last couple of days I have also received a number of very convincingly written comments from people stating that they have been involved in elections and that the counting of postal votes is common practice, and that it is only an offence if the results are published before the final count. This is disconcerting. The lack of a reaction from the other politicians or academic on the BBC panel, and the lack of the issue being raised with either Police Scotland or EMBS before Monday implies that the comments were almost universally seen as being uncontroversial. So is it a big issue if all sides in elections can sample postal votes as they come in? The effect of allowing the counting of postal votes is that it turns elections into rolling counts for the active participants, but leaves the average elector in the dark. It allows campaigns to tweak their message in response to the votes coming in, like they are running an advertising campaign for soap. I can’t believe that this is what most people want. The temptation for activists to take tallies is enormous, so the responsibility must therefore fall on the counting officers to make it impossible. At the moment it is clear that the procedures do not make it impossible. If the politicians really wanted to take tallies of postal votes in the referendum, all they had to do was strike out the clause explicitly prohibiting the counting of postal votes in the Scottish Independence Referendum Act that the Scottish parliament passed less than one year ago.

Ruth Davidson has indirectly done democracy a favour. In future elections, not just in Scotland, but right across the UK, counting officers and candidate’s agents will be more aware of the risk of postal vote counting. The representative of EMB was putting forward a defence that Davidson was delusional, but an alternative explanation is that she was being subtly political and raised the counting of postal votes deliberately to highlight that this practice was organised by one of the other parties in Better Together. It will be a great disappointment to many, but Ruth Davidson will not be staying over at the Cornton Vale Premier Inn anytime soon.

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