Lack of clarity over when recounts will be allowed in Senedd election

Martin Shipton

Concerns have been raised about the lack of detailed guidance about when recounts should be allowed as votes in the Senedd election are totted up.

A political source who did not wish to be named contacted Nation.Cymru and said: “Guidance issued by the Electoral Commission to Returning Officers running constituency counts is clear on the procedural position – particularly around provisional results, recount requests and the Returning Officer’s discretion to refuse unreasonable requests. However, I wonder whether any additional guidance or discussion has taken place specifically in relation to the operation of recounts under six-member closed-list D’Hondt constituencies.

“Under the new system, relatively small changes in aggregate party vote totals could potentially alter the allocation of the final seat in a constituency once the D’Hondt calculations are applied. In some constituencies, the sixth seat may therefore be determined by very narrow margins between parties even where no individual party vote total appears exceptionally close in conventional first-past-the-post terms.

“Given that, has the Commission issued, or intends to issue, any further guidance to Returning Officers on matters such as:

* how recount requests should be considered where the allocation of the final seat is extremely close under the D’Hondt calculation;

* whether any indicative thresholds or principles have been discussed for determining when a recount request may be regarded as reasonable; and

* how provisional calculations and seat allocations will ordinarily be presented to candidates and agents prior to declaration?

“I appreciate that recount decisions ultimately remain matters for Returning Officers, and that the existing guidance deliberately preserves that discretion. But I am interested in whether the Commission has considered if the new electoral system creates circumstances materially different from those in traditional constituency elections.”

A spokesperson for the Electoral Commission said that guidance to Returning Officers stated: “You should be satisfied that the number of votes for each political party and individual candidate is accurate before proceeding to a provisional result.

“All processes should be undertaken within the framework of maximum openness and transparency implemented throughout the various stages of the count so that all candidates and agents can have confidence in the processes and the provisional result you provide.

“Once you are satisfied, you must advise party list candidates, individual candidates, their counting agents and election agents of the provisional result. You should make it clear that the candidates, election agents or, in their absence, any authorised counting agent are entitled to request a recount.

“You must give the candidates and agents sufficient time to digest the provisional result before proceeding. It is at this point that any candidate or election agent may request to have the votes recounted or, following a recount, recounted again.

“You must consider any recount request but by law may refuse if, in your opinion, the request is unreasonable. You may, however, consider offering the candidates and agents the opportunity to inspect the bundles of ballot papers as a means of reassuring them that the result is accurate.

“If you agree to recount the votes, you should inform the candidates and agents present at the count before the recount commences and brief them on the processes you are going to follow. As with the original count, you should carry out any recount in full view of those present. You are entitled to reconsider which ballot papers should be rejected during the recount (or any further recount).

“You must consult candidates and agents on the revised provisional result in the same way as they were consulted on the provisional result at the conclusion of the first count.

“It is possible to have more than one recount. Again, it is for you to consider any request, and you may refuse if in your opinion the request is unreasonable.”

Uncertainty

The political source responded: “The issue is not whether Returning Officers are competent or whether the process lacks integrity. The concern is that Wales is using a new electoral system for the first time, where very small changes in vote totals could alter allocation of the final seat under D’Hondt, yet there appears to be little publicly available guidance on how recount requests will be approached in those circumstances. That creates uncertainty for parties and candidates going into what could be some very tight contests.”

The source added: “My concern is that there is no clear guidance about how close two parties should be in contesting the sixth seat before a recount is granted. Without such guidance, there could easily be inconsistencies across Wales, potentially leading to a situation where a recount is granted in one constituency, but denied in another, even though the gap between parties contesting the sixth seat is smaller.”