A number of ALDC members are continuing to contact us over the restrictions they are facing at the verification and the count. If you feel your returning officer is imposing restrictions that are onerous or unnecessary, our advice is to argue your case. Don’t simply backdown. Below are the key points to make.
Candidates and agents are entitled to attend the verification and the count by law. They, and counting agents, have certain rights during a count.
The basic guidance that returning officers need to follow is in The Electoral Commissions guidance ‘Part E – Verifying and counting the votes Local government elections in England and Wales: guidance for Returning Officers’. You can refer to this.
ELECTORAL LAW HAS NOT CHANGED
The law on verifications and counts has not changed, as the Electoral Commission states here: ‘Whilst public health considerations will likely mean that the verification and count will be managed differently than at previous elections, the law relating to the timing and management of the count has not changed and ROs will need also to consider how they can deliver the count locally whilst providing a safe environment for all those involved.’ (Key considerations for the delivery of the May 2021 polls: verification and count, The Electoral Commission).
This means that the count should be run in a way that allows candidate, agents and counting agents to exercise their legal rights. Where health and safety considerations are in conflict with this, the returning officer must keep an auditable trail of decision making. You should ask to see her/his risk assessments and for them to demonstrate that their decisions are justifiable and proportionate.
SECRECY OF THE COUNT
In many areas, health and safety is being maintained by spreading the verification and count of a long period of time, even over several days. This is a reasonable response by returning officers. However, it does pose a risk to the secrecy of the count.
It is vital that we do not Tweet or post about the verification or any indications that we have seen before the declaration. It is illegal to do so.
The Electoral Commission makes a great deal in its advice on the importance of transparency and communication. The attendance of candidates, agents and others at the verification and count is not window dressing. It is a vital part of the process.
Returning Officer must act as transparently as possible. If you feel they are not then you can challenge them on this.
The law does allow returning officers to limit the number of counting agents for health and safety. However, those attending must be allowed to do their jobs. The agent and candidate can act as counting agents.
In ‘Local elections in England and Wales Guidance for candidates and agents Part 5 of 6 – Your right to attend key electoral events ‘, the Electoral Commission says: ‘Counting agents have a number of important roles to play at the count:
- they observe the counting process and make sure that it is accurate
- they can draw to the attention of count staff any doubtful ballot papers’
Clearly this cannot be interpreted as suggesting we are not allowed to scrutinise the papers.
The counting agents should be allowed and able to see, and challenge, ballot papers, albeit from a safe distance.
DISPUTED BALLOTS AND DECLARATIONS
It is up to the returning officer to find a safe way to discuss doubtful ballots and provisional ballots with the agents and candidates.
The Electoral Commission says ‘You will need to establish a process for safely communicating provisional results to candidates and agents, and to seek their agreement on the announcement of the result.’
It is perfectly acceptable for returning officers to require the wearing of masks, to restrict movement in the counting centre and to use screens appropriately. They may, for instance, use wrist bands to restrict the numbers view a particular table.
Some returning officers are asking attendees to undertaking COVID testing before attending. This may be reasonable but we have, as yet, seen nothing to say this is enforceable.
REPORTING BACK TO THE ELECTORAL COMMMISSION
You might finally say, if you feel it necessary, that the Liberal Democrats are monitoring the performance of Returning Officers, including on how they run counts, and this will be discussed with the Electoral Commission in our post-election meeting with them.
We would be grateful to receive any feedback you have on the performance of returning officer, both in relation to the count and verification, and to the running on the wider campaign. Please send any reports to email@example.com.