Inside Story

No diversion unticked

A more responsible party leader wouldn’t have joined in a ridiculous debate about ticks and crosses

Peter Brent 31 August 2023 1551 words

Tactical confusion: opposition leader Peter Dutton. Lukas Coch/AAP Image

Last week a mini-furore lit up over ticks and crosses on the ballot paper for the Voice referendum. It started life when electoral commissioner Tom Rogers told 2GB’s Ben Fordham that a tick would likely count as a Yes vote while a cross would probably be informal. Fordham’s burst of outrage would probably have floated away after a couple of days if Peter Dutton hadn’t jumped on board.

It was “completely outrageous,” the opposition leader thundered to Fordham. “Australians want a fair election, not a dodgy one.” That turned a storm in a teacup into mainstream news.

Soon enough, the Australian Electoral Commission felt obliged to point out that “the formal voting instructions for the referendum are to clearly write either ‘yes’ or ‘no,’ in full, in English.” In the 1999 republic referendum, said the AEC, a tiny 0.86 per cent of votes were informal (the accompanying constitutional preamble question got a slightly higher 0.95). Given that there are obviously many ways of voting informal, these numbers represent the very maximum number of ballot papers discarded because they were marked with a cross.

The current interpretation of ticks and crosses was adopted in the late 1980s. The Coalition has never expressed any concerns about it, and certainly didn’t this year when many of its MPs voted to pass the Voice referendum legislation in March. The interpretation isn’t in any legislation, but it’s in legal advice obtained by the AEC.

This sudden kerfuffle is of course part of the No side’s grievance campaign: the government and other elites, it says, are pulling a swifty on ordinary voters. One likely outcome of the beat-up will be more ticks and crosses on ballot papers than would otherwise have been the case.

An irony of all this is that when jurisdictions across the country count ticks and/or crosses as formal, they are deemed to mean the same thing: a vote for whatever party or candidate they are written next to. In the Senate, for example, a tick or cross is taken to mean a “1.” It’s the same in NSW elections: a cross or tick next to a candidate or party is interpreted as a “1.”

The last twenty constitutional referendums (there have been forty-four since Federation) have used the current ballot paper design. It might be reasonable to wonder, soberly, whether the legal advice should be overridden by legislation. It could be done: parliament sits this month. But sowing confusion — “If you don’t know vote No” — was the real purpose of the exercise.

The evolution of the referendum voting paper illustrates two features of Australian elections: that instructions for one ballot paper can have a negative impact on how voters mark another paper they must fill in on the same day; and how the AEC uses “savings provisions” to deal with some incorrectly filled-in papers.

A well-known case of the unintended crossover arose when the Senate ballot paper was redesigned in 1984. This was the first outing for two new features: group voting tickets and the above-the-line option of simply putting a tick (a cross was also accepted) next to a group. The chief purpose was to reverse the explosion in informal Senate votes, which had reached 9.9 per cent in 1983. The above-the-line option worked a treat, cutting Senate informality by more than half to 4.7 per cent.

Unfortunately, some voters applied the Senate instructions to the House of Representatives ballot paper as well, and informal votes for the lower house more than tripled, from 2.1 in 1983 to 6.8 per cent. Oops.

(Thanks partly to a voter-education campaign, lower house informality subsequently decreased, but it has never again been as low as 1983’s 2.1 per cent. The lowest in the past four decades was 3.0 per cent in 1993. These days the main causes of informal votes — not necessarily in this order — are increasing candidate numbers, more voters from non-English-speaking backgrounds, the confusion created by optional preferential voting at state or territory level, and a rise in the number of people deliberately voting informal. Group voting tickets were abolished in 2016.)

The savings provisions, meanwhile, allow the AEC to count a ballot paper filled in incorrectly — with ticks or crosses against candidates’ names, for example — so long as the voter’s intention is clear.

People of a certain age might recall what became known as the Langer vote, a savings provision introduced in the 1980s for House of Representatives elections. Despite the stated requirement that voters number all candidates, the AEC accepted ballot papers where a voter appeared to have inadvertently failed to fully comply with preferencing (by numbering 1, 2, 3, 4, 4, for example).

Like most savings provisions, the difference this made to the count was tiny, but it wasn’t long before interested parties cottoned on to the fact that a voter could use it, in effect, to make a full allocation of preferences optional. Most importantly — at least from the major parties’ point of view — you could cast a valid vote without your preferences ending up with either Labor or the Coalition. Parliament’s first response was to make it illegal to urge anyone to vote in this manner; after a series of court cases, and after an activist called Albert Langer did time in the slammer, parliament got rid of the Langer vote altogether.

Several Australian jurisdictions have laws against advising voters to avail themselves of savings provisions. During a NSW campaign, for example, it is illegal to “print, publish, distribute or publicly display any electoral material that encourages any elector to place a tick or a cross in a square on a ballot paper” even though, as described above, it would still in many cases be counted as formal.

The current referendum ballot paper, which has just one square and instructions to write Yes or No inside it, was first used for the 1967 referendums. Since the 1980s the AEC has acted on legal advice to accept ticks as “Yes” but throw crosses onto the informal pile. I haven’t been able to find out how the commission and its predecessor treated ticks and crosses at referendums from 1967 to 1984.

A sketch of the journey of referendum ballot papers goes like this. The first ones, created and used in 1906, contained two boxes, next to the words Yes and No, and voters were instructed to put a cross inside the box next to the option they wanted. Referendums in that first decade of federation were held with general elections; voting for both houses of parliament also required putting crosses in boxes (one cross for the lower house, three for the upper) and that left little potential for confusion.

(Those three referendums, in 1906 and 1910, still had rather high informal votes, much higher than the accompanying elections.)

In 1918 the federal government replaced first-past-the-post with full preferential voting, requiring the ranking of all House candidates with numbers, like today. (At the next election, in 1919, informality for the House increased only slightly, but this was masked by the fact that voters who persisted in writing a cross next to their desired candidate benefited from savings provisions that counted their vote as formal if only two candidates ran in their electorate, which was the case for 64 per cent of those votes.)

The two referendums held with the 1919 election used the 1906 ballot paper, and average informality was a very big 13.6 per cent. Two midterm referendums in 1926 averaged a low 4.5 per cent informality. So it seemed reasonable to surmise that running referendums with elections caused some confusion.

In 1928, two months before an election at which a referendum would also be held, the ballot paper was radically redesigned. Referendum voters were still presented with Yes and No with a square after each, but now they had to put a “1” next to their choice and “2” next to the other. No more mentions of crosses on any ballot instructions (although — hullo savings provision! — a ballot with a single cross was still counted as if it was a “1”). Relative to the pair of referendums held with the 1919 election, informality dropped dramatically to 6.6 per cent.

This referendum ballot design remained through to 1965, when the Menzies government changed it to what we have today: just one square, with instructions to write either Yes or No. Country Party MP (and future party leader) Doug Anthony told parliament it would be “a more positive and, I believe, a more correct form of voting at a referendum.”

Anthony also noted that the “present provisions which provide that a ballot paper marked only with a cross or marked only with the figure 1 constitutes a formal vote will no longer be appropriate.” Back then, of course, a cross was accepted as indicating support for either Yes or No. Did this influence the later legal advice to the AEC regarding crosses? I’m no lawyer.

In 2023, it’s not even clear that most people who put a cross inside the referendum box are expressing opposition. Many times — in banks, at hospitals — they will have been asked to mark their preference with a cross. A more responsible party leader would have politely declined the invitation to buy into this ridiculous circus, but we are where we are, with ticks and crosses in the news and the commission having to devote resources to answering questions about them, sincere and otherwise. •

Update: Kevin Bonham covers similar territory, in parts in greater detail.