Electoral Commission Advice on Postal Vote Sampling

In their Bulletin to electoral administration staff in Scotland and in England and Wales, published on 13th March 2015, the Electoral Commission included their view that the legislation prohibits the taking of tallies by postal vote agents at postal vote openings. The reminder was published only four weeks before the first postal ballot papers were sent out, with the bulletin noting that the Commission were “amending Part 5 of our guidance for candidates and agents at UK Parliamentary to make this point explicitly and expect to publish an updated version later today.” The Bulletin concluded: “We recognise that you may already have printed and distributed packs for prospective candidates, in which case you will need to consider how you can make candidates and their agents aware of this in some other way…”. The Commission have been aware of the risk of postal vote sampling since the McCarthy case in the 2010 General Election, and have also been aware since last September of the investigation into sampling during the Scottish referendum. The Commission spent six months claiming that returning officers were aware that they should not allow sampling and that postal vote agents were aware of the secrecy requirements, but this advice to returning officers across the UK is an admission that this has been a systemic problem in electoral administration.

The full text of the relevant section of the Electoral Commission’s English Bulletin is:


May polls 2015: tallying at postal vote openings

We have been asked for our view on the legality of tallying at postal vote opening sessions, and we can confirm that it is our view that the legislation prohibits it.

This is because, at a postal vote opening, it is not permissible to ‘attempt to ascertain the candidate for whom any vote is given in any particular ballot paper or communicate any information with respect thereto obtained at those proceedings (Section 66(4)(d) of the Representation of the People Act 1983 (as amended)). This provision therefore prevents those present at the postal vote opening from attempting to ascertain the way individual ballot papers are marked. This interpretation is consistent with Regulation 84 Representation of the People (England and Wales) Regulations 2001 which stipulates that, when opening the postal votes, the Returning Officer ‘shall keep the ballot papers face downwards and shall take proper precautions for preventing any person from seeing the votes made on the ballot papers’.

It is therefore clear that, at a postal vote opening, ballot papers are to be kept face down and individuals are not permitted to look at the ballot paper to attempt to see how it is marked.In the context of tallying, therefore, it is not the act of counting itself that is prohibited, but the necessary prerequisite of looking at the individual ballot papers to see how they are marked.

We are amending Part 5 of our guidance for candidates and agents at UK Parliamentary and local elections to make this point explicitly and expect to publish an updated version later
today. We recognise that you may already have printed and distributed packs for prospective candidates, in which case you will need to consider how you can make candidates and their
agents aware of this in some other way, such as by covering this in your briefing sessions and making clear at postal vote openings that tallying is not permitted.

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