Problems with appointing Emergency Proxies in the Scottish Referendum

On 18th December Mary Pitcaithly, the Chief Counting Officer, and Ian Milton, the Chair of the Scottish Assessors Association (SAA) Electoral Registration Committee, were questioned for an hour by the Scottish Parliament’s Devolution (Further Powers) Committee. The obscure question in this clip from Lewis Macdonald MSP is a reference to problems for registration officers in dealing with requests for emergency proxies right up until the afternoon of referendum day. The problems are described in a review of the referendum prepared by Ian Milton for the Scottish Assessors Association’s Electoral Registration Committee and submitted to the Parliament. The SSA criticise the Electoral Commission’s design of the forms and the timescales required by the legislation. Ian Milton states in this clip that the report was shared with the Electoral Commission, but absolutely nothing about problems with emergency proxies is mentioned in the Electoral Commission’s review of the conduct of the referendum. Voters raising concerns about the referendum were channelled towards the Electoral Commission with an expectation that the Commission’s review would address procedural issues, but in not addressing the problems with emergency proxies raised by the SAA it seems that the Electoral Commission has a blind-spot over alleged failures in its own processes.

The SSA report states that these problems made “the carrying out of any checks to preserve the integrity of the absent voting system, or indeed the notification of the outcome within the necessary timeframe virtually impossible”. The Electoral Commission report tells us that 6690 emergency proxies were appointed, but we are completely in the dark about whether these problems led to legally valid applications for emergency proxies either not being appointed or not being communicated in time, or invalid applications having proxies appointed.

Appendix: Relevant Section from SAA Report

Note: the timetable’s dates are coded as days prior to the referendum, so R-0 is the day of the referendum and R-11 is eleven days before the referendum, with E-6 being six days before an election.

Emergency Proxies

The emergency proxy provisions were extremely unsatisfactory. Normal election timetables allow postal vote applications up to E-11 and proxy applications up to E-6. For the referendum, the 5pm R-11 ‘cut-off date’ applied to both postal and proxy applications, but non-attested emergency proxy applications could be submitted up to midnight on R-6, thereafter attested applications could be made until 5pm on R-0 (18 September).

This confused all parties to the process.

Eligibility for an emergency proxy had been recently extended for the European Parliamentary Elections on 22 May 2014 to include unforeseen absences due to occupation, service or employment commitments. SIRA widened the eligibility criteria further to include any unforeseen unavoidable absence.

The broad eligibility criteria, electors’ confusion around time limits and attestation, and the potential wide interpretation of what constituted an unforeseen unavoidable absence created significant challenges for EROs. This was compounded with the late provision/availability of the Electoral Commission’s application forms (2 September) and their poor design – with no email/phone contact information requested for the proxy or supporter. The lack of email/telephone contact details for proxies in particular was extremely regrettable as it made communication of the application outcome extremely difficult particularly for applications made after R-6.

The forms also confused disability with medical emergency, as disability would normally be considered to be an ongoing condition that the elector would usually be aware of on/before R-11 and thus be able to make arrangements to vote by post or proxy as is the case for any elector.

The supporter requirements where attestation was required were extremely weak, with the any unavoidable absence option which only needed to be supported by any over 18 year old who knows the applicant essentially undermining the in-employment supporter requirements. Normally medical emergency proxy supporters must hold a specified medical-related qualification (this was not a requirement for SIRA) and the more rigorous employment emergency proxy supporter statement (again not required by SIRA) cannot be circumvented by the catch-all any other unavoidable reason supported by anybody who knows the applicant provided by SIRA.

There was widespread misuse/abuse of the emergency proxy provisions with electors making last minute applications to vote by proxy where they were clearly missed the absent vote cut-off date deadline of R-11. Some unsuccessful applicants made repeated applications and ERO resources were again placed under undue strain to deal with the widespread misuse/abuse of the emergency proxy provisions. One ERO referred a clear example of a fraudulent application to Police Scotland but was advised that an investigation was unlikely to be an effective use of resource.

The 5pm deadline for applications on R-0 (18 September) and the failure for any telephone/email contacts information to be required and therefore available to EROs made the carrying out of any checks to preserve the integrity of the absent voting system, or indeed the notification of the outcome within the necessary timeframe virtually impossible for EROs. Some 6,000 emergency proxy applications were allowed by EROs.

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