Every voter’s squiggle counts: why Bradfield court battle could drag on for months

The Bradfield election count saw more reversals of fortune than Succession. First the independent Nicolette Boele was acclaimed the likely winner on election night. Then the Liberal Gisele Kapterian won the count by eight votes, only to see this snatched away in a recount with Boele winning by 26 votes. Now Kapterian is challenging the outcome in the Court of Disputed Returns. Does this mean the beleaguered burghers of Bradfield will be heading back to the polls?

The Court of Disputed Returns has the power to declare that any election is absolutely void, or that a person who was returned as elected was not duly elected and that any other candidate is elected. But other than cases of disqualification or corrupt conduct by a candidate, the court can only alter the outcome of an election or declare it void if any error or illegal practice in the conduct of the election was likely to have affected its outcome and “it is just” to do so.

The law requires that “real justice” be observed, with the court to be “guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities”.

Kapterian’s challenge is about whether particular ballot papers were mistakenly classified as formal or informal, affecting the outcome of the result. Was a 5 really an 8, and was that squiggle actually a 7?

If a successful claim were made that the outcome could not be known because ballots had gone missing or electors were wrongfully denied the ability to vote, a fresh election would be required. But in this case, as the court can determine the formality of each vote, it is more likely it would either confirm Boele’s election or declare Kapterian the winner. A fresh election is unlikely, unless the margin is so close that the outcome cannot be fairly determined, or is affected by other factors, such as multiple voting.

How long will it take? The Commonwealth Electoral Act contains a section optimistically headed “Court must make its decision quickly”. But the substance says the court must make its decision “as quickly as reasonable in the circumstances”. This will depend on a number of factors.

First, there is the question of who constitutes the Court of Disputed Returns. Ordinarily, it is the High Court. But on Friday, the Chief Justice of the High Court, Stephen Gageler, sent it off to the Federal Court to determine. As Kapterian’s challenge mostly involves assessments of fact, rather than high legal principle, it is appropriate that it be dealt with by a lower court.

Second, timing will depend on how many ballots need to be reviewed and the time given for the parties to examine them and prepare their arguments.

There are 795 ballots that were initially challenged by scrutineers and sent to an electoral official to determine their validity. Kapterian, based on scrutineer notes, is arguing that 56 were wrongly excluded as informal and that 95 were wrongly included in the count.

A similar challenge was launched in 2008 in the seat of McEwen. The judge said that as he had to assess whether mistakes about formality were likely to affect the outcome of the election, he would have to determine the validity of all the 643 ballots that had been initially disputed. He allowed both the challenger and the elected candidate to examine these ballots and make submissions about the ones they contested, before he decided the validity of the lot.

This process took time. The election had been held on November 24, 2007; it was challenged by petition on January 25, 2008; the High Court referred it to the Federal Court on February 21 and the judgment was handed down on July 2, 2008.

Kapterian’s challenge might be a bit quicker, if there is no dispute about the previously declared principles for deciding on the formality of votes. But now it has been referred to the Federal Court, it could still take quite a few months to resolve.

The main principle is that questions about the form of a vote should be resolved in favour of a valid vote where there is no doubt as to the real intention of the voter. But the court must “not resort to conjecture or the drawing of inferences in order to ascertain a voter’s intention”. The voter’s intention must be “unmistakeable”.

The AEC already follows these principles when deciding on the formality of votes. But reasonable minds may differ about what is an unmistakeable intention when reading unclear handwriting.

No one is disputing the integrity of the AEC’s decision-making processes. This challenge is directed to the final umpire on genuinely contestable interpretations.

The lesson? Write clearly when voting and follow the instructions on the ballot to make your vote count.

Anne Twomey is a professor emerita in constitutional law at the University of Sydney.