An ass recommends donkey-voting

August 15, 2010 4:53 PM

What would happen if every Australian 'donkey-voted' this Saturday?

Mark Latham seems to be on a mission to prove beyond all doubt that he is a lunatic, but his voting strategy suggestion has got me thinking.

What if the majority of Australians donkey-voted by not ticking or numbering the boxes as required? I believe it is a prosecutable offence (because enrolling to vote and voting when required is compulsory here), but I doubt that every voter would be prosecuted.

What if, say, only one person in each electorate voted correctly? There would be no way to prove which person that was.

So, what would happen? Would the current government continue on? Would the Governor-General be involved? Would another election be called?

(And, no, I am not planning on donkey-voting. It's just one of those things I've started to wonder about, and googling hasn't helped. As I dreamed last night that the entire Australian Capital Territory was consumed by bushfire, I think I need some closure.)

posted by malibustacey9999 to Law & Government (26 answers total)

If you turn up and put a ballot in the box, you've fulfilled your electoral obligations.
posted by zamboni at 5:04 PM on August 15, 2010

I believe it is a prosecutable offence (because enrolling to vote and voting when required is compulsory here), but I doubt that every voter would be prosecuted

That would be an informal vote, and not counted. It's not prosecutable. You only have to enrol, and turn up to get your name ticked off the list.

Also: a 'donkey vote', strictly speaking, is numbering the candidates in order of their appearance on the ballot, so you could go to the AEC site and work it out from the ballot orders given. This is why the ballot positions are randomised.

In my seat (Gellibrand), it would make no difference. Nicola Roxon will piss it in either way...
posted by pompomtom at 5:16 PM on August 15, 2010

It's not an offence to vote informally. It's an offence under the Electoral Act not to have your name ticked off the roll without a good excuse (you don't even have to put the ballot in the box; you can burn it, or make origami cranes, or give it away to the next person in line if you want). More practically, there's no way to prosecute people for the way they vote. It's a secret ballot.

A donkey vote, the ticking of boxes sequentially in the printed order, first to last top to bottom, is just as valid a vote as any other, and if everybody voted that way, all that would happen would be that in each electorate the candidate first on the ballot would be elected.

Interesting further reading: it is an offence to publish deceitful or misleading material about voting.
posted by Fiasco da Gama at 5:17 PM on August 15, 2010

Actually, I'm a little misleading about informal votes: they are counted - but they don't have any impact on the winner...

Please don't dob me in Fiasco!! I corrected it as fast as I could...
posted by pompomtom at 5:21 PM on August 15, 2010

232Â Voters to be recorded

(1)Â Immediately after handing a ballot paper to a person whose name is on the certified list of voters, or an approved list of voters, available at a polling place, the presiding officer or a polling official at the place must:

(a) place a mark against the person’s name on the certified list; or

(b)Â record electronically against the approved list the fact that the person has been handed a ballot paper.

(2)Â The presiding officer at a polling place shall make a record of the name of each elector who casts a declaration vote at the polling place and, in the case of an absent voter, of the Division for which the elector declares under subsection 222(1) or (1A) that he or she is enrolled, and shall, at the close of the poll, forward the record, duly certified by the presiding officer, in accordance with section 228.

233Â Vote to be marked in private

(1)Â Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:

(a)Â retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;
(b)Â fold the ballot paper so as to conceal his or her vote and:

(i) if the voter is not an absent voter—deposit it in the ballot‑box; or

(ii) if the voter is an absent voter—return it to the presiding officer; and

(c)Â quit the booth.

That's all you have to do. Fold the paper, put it in the box. If you don't, you may be fined up to $50.
posted by zamboni at 5:25 PM on August 15, 2010

You can find the current version of the Commonwealth Electoral Act here. It appears that informal votes are not considered when determining whether a candidate has a majority:

(10) In this section an absolute majority of votes means a greater
number than one-half of the whole number of ballot papers other
than informal ballot papers.

So my un-lawyerly guess would be that the candidate given first preference in the single valid vote would be elected. If there were two votes for two different candidates:

(9C) If, after the fresh scrutinies referred to in subsection (9A), 2 or
more candidates have an equal number of votes, the Divisional
Returning Officer shall give to the Electoral Commissioner written
notice that the election cannot be decided.

but I don't know what happens after that.
posted by plant at 5:41 PM on August 15, 2010

Best answer: If no elections are decided, I think it would go to a new election, with a new roll:

181Â Failure of election
(1)Â Whenever an election wholly or partially fails a new writ shall forthwith be issued for a supplementary election:

Provided that where the election has failed in consequence of the death of a candidate after the declaration of the nominations and before polling day, the supplementary election shall be held upon the roll which was prepared for the purpose of the election which failed.

(2)Â An election shall be deemed to have wholly failed if no candidate is nominated or returned as elected.

posted by zamboni at 5:43 PM on August 15, 2010

If we take the definition of donkey vote as being preferencing the candidates in the order they appear on the ballot, then there would be 150 people elected to the House of Reps with a 100% majority. There would no longer be any such thing as a marginal or safe seat

Using the candidate list here, I worked out that if every candidate currently first on the ballot paper for the House of Reps was elected, the numbers would stack up as follows:

The Greens 28
Australian Labor Party 23
Family First 21
Liberal 18
Australian Greens 7
Independent 7
Liberal National Party of Queensland 7
Christian Democratic Party (Fred Nile Group) 6
Labor 6
One Nation 6
Liberal Democrats (LDP) 4
Socialist Equality Party 4
Secular Party of Australia 3
Australian Democrats 2
Australian Sex Party 2
Citizens Electoral Council 2
Country Labor 1
D.L.P. - Democratic Labor Party 1
Socialist Alliance 1
The Nationals 1

This would make for a very interesting parliament...
posted by girlgenius at 7:10 PM on August 15, 2010 [11 favorites]

Best answer: For what it's worth, the situation zamboni describes occurred in NSW in 2003, where Jim Anderson who was running for Labor in Londonderry died suddenly on polling day. The election was postponed for two months and a supplementary election held (which the Liberals chose not to contest).

Regarding the question of abstention:

What if, say, only one person in each electorate voted correctly?

There's no reason that a result of this nature couldn't simply be declared as a 100% vote for the candidate for whom that lone voter cast their vote. There's no history in Australia of abstention campaigns along the lines of France in 2002, so there's no way of knowing in practice, but legally, I think, under the Electoral Act the Returning Officer would have to recognise the legitimacy of a result even under mass informal voting.

It would then be decided under our long-standing system of the division of powers: a joint sitting of the editors of the Fairfax and Murdoch papers.

Girlgenius: that's awesome. My head's reeling at the thought.
posted by Fiasco da Gama at 8:17 PM on August 15, 2010 [1 favorite]

If you turn up and put a ballot in the box, you've fulfilled your electoral obligations.

Technically, you only need to get your name checked off the roll & receive your ballot papers. I don't think anybody can compel you to put anything into the ballot box, and chances are they'd be too busy to notice if you stashed the papers somewhere and just walked out.

Having said that, I am not your lawyer.
posted by UbuRoivas at 8:42 PM on August 15, 2010

zamboni: "If you turn up and put a ballot in the box, you've fulfilled your electoral obligations."

The Langer decision makes it an offence to advocate filling out the ballot any way other than as specified in the Act. As sect 233(1)(a) says "and there, in private, mark his or her vote on the ballot paper", advocating that people leave it blank would appear to fall foul of Langer. Nobody cares if you do it, but you're not allowed to tell people to do it.

Except in South Australia. As we've long suspected, they're a special case ;-)

SA Election Guide:
"Voting is secret and you are not legally obliged to mark the ballot papers. You obligation is to have your name marked off the roll and be issued with ballot papers that must then be placed in the sealed ballot boxes. An elector must not take ballot papers out of a polling place.”

I believe ballot papers in SA contain words to that effect, so that puts them in the land of Sect 233(1) - "Except as otherwise prescribed…"

What state (geographical, not physical/mental/lubricated ;-) was Latham in when he said it?
posted by Pinback at 8:45 PM on August 15, 2010

Did anybody see where that illegal immigrant ran off to? The one who was using my computer just earlier?
posted by UbuRoivas at 8:50 PM on August 15, 2010

AEC says there's nothing to prosecute Latham for. Damned shame.
posted by Jimbob at 8:51 PM on August 15, 2010

Well the Electoral Act can direct voters to place their ballots in the box all it pleases, but for practical purposes of enforcement, there's no way the AEC or State electoral office can assess who does and who doesn't cast their vote, it being a secret ballot after all. The full list of electors compared with the names ticked off on polling day is the instrument used to issue the $50 fines.

Pinback, I understood the Langer decision to refer only to making "misleading" or "deceitful" instructions, ie. saying that a vote in a certain way will be formal, when it won't. Latham's clearly advocating informal voting itself; I don't think pro-abstentionism falls under Langer.

For the record, I have been given blank ballot papers by voters on polling day. "You want this son? I don't fucking want it". (He voted Labor).
posted by Fiasco da Gama at 9:06 PM on August 15, 2010 [1 favorite]

UbuRoivas: as well as sect 233(1), which says you "shall" return the folded paper to the ballot box or presiding officer, the Electoral Act 2004 Sect 186(1)(d) specifically says a person must not "without authority, remove a ballot paper from a polling place".

On preview: You may be right, Fiasco. Langer was specifically about misleading/deceitful instructions, although interestingly the AEC's take on it seems to be that it's legal to mention the possibility of casting a blank vote - but not to advocate for it!
posted by Pinback at 9:22 PM on August 15, 2010

a person must not "without authority, remove a ballot paper from a polling place".

I think that was the reason given when they wouldn't let me go through the bins inside once, when I was running dangerously low on how-to-votes.

(apart from the fact that booth workers aren't generally allowed inside except to cast their votes; I really should brush up on these rules before Saturday...)
posted by UbuRoivas at 9:32 PM on August 15, 2010

After that decision Langer's supporters told people to mark their ballot paper "1-1-1-1-1", arguing that this was consistent with the instruction to "put the number 1 in the box of your preferred candidate and number the other candidates in the order of your preference" (or however it goes - it's been a while). I only know this because I was helping out at a polling station in the CBD and Langer's group had arranged for a TV crew to turn up and be filmed while they corrected us for giving incorrect advice (i.e., saying "Put the numbers form 1 to whatever in the boxes"). As it turned out, all the people helping out were election nerds who were perfectly capable of reciting the approved instructions and the camera crew left without anything newsworthy.
posted by Joe in Australia at 10:21 PM on August 15, 2010

Best answer: The larger question, of course, which is what would happen in Australia were there to be an election without a outcome seen by the public as legitimate, has no answer. The reserve powers of the Governor General don't really cover it. There's no convention for it. Hung Parliaments are one thing, but no legitimate elected Parliament?

I don't think anyone has any idea about what would happen.
posted by Fiasco da Gama at 11:17 PM on August 15, 2010

Just using this thread to pimp my favourite psephological site: Below The Line. Print out your own HTVs for the Senate, or check preference deals.
posted by wilful at 11:18 PM on August 15, 2010

The larger question, of course, which is what would happen in Australia were there to be an election without a outcome seen by the public as legitimate, has no answer. The reserve powers of the Governor General don't really cover it. There's no convention for it. Hung Parliaments are one thing, but no legitimate elected Parliament?

I don't think anyone has any idea about what would happen.

but given that this is at the extreme end of theoretical speculation, who really cares?
posted by wilful at 11:20 PM on August 15, 2010

The Senate blocking supply in 1975 was also thought to be at the extreme end of theoretical speculation. And you know who else was into the extreme end of theoretical speculation?
posted by UbuRoivas at 11:46 PM on August 15, 2010

Actually, it's legally irrelevant whether the public sees the election as legitimate or not. There's nothing in the constitution saying that before the GG can rubber-stamp the result, a second plebescite must be held to determine if the general public thinks the result was legitimate.

In the US, plenty of people thought the Florida hoo-haa meant that GW Bush wasn't legitimately elected, but that didn't stop the rule of law from prevailing.

Of course, the public might be suspicious or disgruntled, but as soon as a new batch of people start to battle it out on TV with their kitchen skills, these complaints will collapse like a souffle suddenly exposed to a gust of cold air.
posted by UbuRoivas at 11:56 PM on August 15, 2010

Wilful, surely ss 5 and 32 would cover it:

5. The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.
...
32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

posted by Joe in Australia at 11:58 PM on August 15, 2010

This sounds like a question for Antony Green who hasn't written about it yet. I know someone at the ABC who will give him a nudge to do so.
posted by AmbroseChapel at 2:04 AM on August 16, 2010

Response by poster: I apologise. I didn't word the question very well. I was fantasisting about what would happen if at the 'end of the day', there was no result because the Australian public as a whole had decided to do what Latham suggested.

I'm going to leave marking 'best answer/s' until tomorrow to give others a chance to chime in.

But may I say (oh good grief, is that a 1972 Gough Whitlam accent I have affected?) you have all given me much food for thought. I worked for a government minister, I learned then about policies and parties, but had never given much thought to voters perhaps, um, un-voting.

And I think I love Antony Green.
posted by malibustacey9999 at 4:04 AM on August 16, 2010

The Senate blocking supply in 1975 was also thought to be at the extreme end of theoretical speculation.

Well yes, it is extreme, but not outlandish. A parliamentary party blocking supply in the upper house, versus a majority of Australians consciously failing to register a legitimate vote?

(and lets not forget when spinnig tales about 1975, that the result wasn't a coup where Fraser was installed as PM, but a fair and free general election, that Fraser won convincingly)

If a massive protest non-vote happens, then democracy in Australia is truly broken.

And you know who else was into the extreme end of theoretical speculation?

Your mate down the pub?
posted by wilful at 5:14 AM on August 16, 2010