Monday, August 1, 2016

Gaynor's Clueless Call For Senate Recount

A reader today drew my attention to this piece by Bernard Gaynor claiming apparent irregularities in the Tasmanian Senate count, and calling for a recount, even including a petition to the AEC to that effect.  Gaynor's concern is that as a result of this outcome Australia will have one less Pauline Hanson and one more Sarah Hanson-Young.  Luckily for those who think one of either or both in the Senate is one too many, both these Senators are actually unique. Neither is affected by the outcome in Tasmania.

In this piece I'll examine the basis for Gaynor's call in some detail, but firstly I should point out that the call for a recount is in itself misconceived.  The reason for this is that it comes too late.  The time for calling for a recount in a seat is before the declaration of the poll (S278 Commonwealth Electoral Act).  In 2013, requests for a recount in Western Australia were granted (on appeal) because of a much closer apparent margin (14 votes) at a tipping point during the preference distribution and the declaration of the poll was delayed while the recount was conducted.  I followed the progress of that recount in an article at the time.

In this case, the poll for Tasmania has been declared.  Either no request for a recount was made in time, or if one was made it was rejected (I don't know which, but I have not heard that one was going to be made.)  Had a request been made, it would have needed to show evidence other than just the closeness of the margin (which is outside the automatic margin for House of Reps counts, although there is no specified margin for Senate counts).  Bernard Gaynor (who would not be eligible to request a recount anyway) now purports to show such evidence, but even if there was anything convincing there, it's much too late.  Anyone eligible and wanting to appeal the result of a contest that has been formally declared needs to do so by going to the Court of Disputed Returns and seeking a direction that votes be recounted.  Asking the AEC for a recount now will not do any good at all.

However, I will also run through some "issues" raised by Gaynor and show why they are all non-issues.

Votes above and below the line

Mr Gaynor writes that "many of the votes included in the count were either marked both above and below ‘the line’ [..]".  "Many" is an exaggeration (in my sample of 5% of the ballot papers, the rate was 2.5%; someone else may have the full figure) but this is an issue that is fully anticipated under the Electoral Act.  A vote that contains numbers both above and below the line is counted as a below the line vote if it is formal below the line, and the above the line portion is ignored (Section 269(2)). If a vote is formal above the line but informal below, it is counted as an above the line vote.  If a vote is formal below the line but informal above, it is counted as a below the line vote.

Votes marked "dubiously"

Mr Gaynor writes that votes that were dubiously marked are included in the count, and produces this diagram of some supposedly irregular votes:

He shows those that have markings in the Greens column, but they could be found in the column for any party with a substantial vote.  Slashes and asterisks are in fact ticks and crosses.  A tick or cross in the Senate is accepted as valid voter intention (see S268 2(a) and 269 (1A)(a)) provided that there is only one such marking in place of the number 1.  After all quite a few voters come from countries where using one of these markings is the normal way to vote.  So, for example, Bass: Dilston 4-6-48 has just a cross in the Greens box and no other markings.  That counts as a valid 1 vote for the Greens above the line.  Had the Greens been all elected or excluded during the count, the remaining value of that vote would then have exhausted, but that didn't actually happen - the vote helped elect Peter Whish-Wilson then remained with Nick McKim.

The more interesting cases Gaynor shows above are those that have multiple ticks or multiple crosses.  What's important here is that what he shows you is not the full picture.  Based on the ATL data, these votes would be excluded as informal, but to be included in the file they must have been found to be formal below-the-line.  This is indeed the case, for instance with Braddon: Romaine 149-24-7.  In the full comma-spaced-values set, this vote looks like this:


(To parse this output, after the first " mark come the numbers for each of the parties separated by a comma and in ballot order, followed by the numbers for the candidates likewise.  Two commas in a row means a blank box in that position.)

This vote is informal above the line because it contains only crosses for multiple parties (three of which are Labor, Liberal and Green).  However below the line the voter has voted formally, so their above the line vote would be informal anyway.  Their below the line vote in fact runs down the Labor column, then down the Liberal column, then down the Greens column.  This vote would have helped elect the first four Labor candidates, then gone to Nick McKim at some tiny value at the end.

Another good example from the Gaynor set is Braddon: Queenstown PPVC 187-4-26:

Braddon,Queenstown PPVC,187,4,26,"*,1,*,*,*,*,*,2,*,*,*,*,3,*,*,*,*,*,*,*,*,,,1,2,3,4,5,6,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,"

This vote includes the numbers 1-3 above the line, with Xs in every other column.  The voter's intention was presumably to support Labor, the Sex/HEMP ticket and the Jacqui Lambie Network, and exclude all other parties, but unfortunately the voter was unable to comprehend the word "or" in the voting instructions.  Their formal below-the-line vote (1-6 for Labor) counted, but a very small unusued portion would have exhausted on the election of Catryna Bilyk.  Had their above-the-line intention counted instead, the same thing would have happened, but in fact their below the line vote saved them from losing their vote by including all those crosses.

If you want a real cracker regarding ticks and crosses, check out this one:


Not having seen this ballot paper I have no idea what the voter thought that they were doing.  However it is informal below the line, and by virtue of a single cross above the line, committed by legislation to be formal for the party receiving the cross only (Recreational Fishers, if I've counted correctly).

Here's some more fun with ticks and crosses:


Clearly this voter intended to number all the parties above the line and their cross in place of a 1 for Labor is valid.  However they've screwed up below the line by numbering candidates within each party (a depressingly common mistake).  Fortunately for the voter, the combination of accepting a cross and allowing the ATL vote to count where the BTL is informal, means this one counts.  Note in passing the "proximity preferencing" effect in the way that this voter fills their ATL preferences.

And so on.  Mr Gaynor claims that there are "legitimate questions" about the validity of hundreds of votes that favour the Greens, but in fact all his questions are answered by the Electoral Act, and the AEC formality guidelines are also handy (note that ticks and crosses aren't accepted in the Reps but are accepted in the Senate, which is ... peculiar.)

If, armed with all the information here, Mr Gaynor can find any really dodgy-looking votes in the files, he is welcome to point them out.  As a starter, I have checked the treatment of every Bass vote containing a cross (*) in the files and they are all correct under the Act based on the data as coded.

Duplicate or missing numbers?

Again this is a non-issue since duplicate and missing numbers are also covered in the Act.  S269 provides, as a savings provision, that an above-the-line vote is formal if it includes a single 1 (even if every other number above the line is a 2).  S268a has the equivalent savings provision for below the line votes - 1 to 6 once and once only and you're fine.  Votes that are informal above the line will be formal below, or they won't be in the file.  Gaynor is clearly aware that savings provisions exist, so why is he complaining about votes that are protected by them?

Excluded votes

Mr Gaynor claims "A large number of votes in Tasmania were excluded".  In fact, Tasmania's Senate informal rate was 3.48%, somewhat below the national average, but up a point on last time (in line with the national increase in informal Senate votes).  I expect the AEC will analyse all causes of informal voting at this election, but there are natural reasons why informal voting may have increased modestly in the first run of a new system.  One of these is that the final legislation passed, in one of its few minor flaws, required all below the line votes to have the numbers 1 to 6 once and once each, with no latitude for error on this score.  As an extreme example I saw one vote where the voter had numbered every box below the line but omitted the number 6.  There was no marking above the line so the vote was clearly informal.

I will be analysing the trends in Senate informal voting later once all the Senate votes are known, but anyone bothered about informal voting should be more bothered about the higher rates in the House of Representatives, caused by a lack of protection for genuine errors.

There were also, as usual, various votes excluded because they did not comply with requirements for the admission of postal and other non-ordinary votes from the count.  No evidence has been produced of anything unusual there.

Exhausted votes

Mr Gaynor smells a rat in the fact that "an additionally large number [of votes] ‘exhausted’, the vast majority of which came as ‘conservative’ candidates were excluded."

Regular commenter Alaric has noted (in comments on the previous article) that the exhaust rates of votes originating with small right-wing parties were not very different to those of votes originating with small left-wing parties.  Nearly all the value of the Liberal votes was soaked up electing candidates, and of the right-wing micros, the Christian Democrats had one of the lowest rates of eventual exhaust of any.  The Shooters, Fishers and Farmers (whose voters are not so "conservative" anyway, given that they preferenced Labor over the Liberals in Tasmania) had a fairly high exhaust rate, but not as high as for some left micros like Sex/HEMP and Arts Party.  The Family First exhaust rate was quite low.

The first reason far more votes exhausted as conservative candidates were excluded (or elected) is a simple one: they had more votes to distribute.  With the Greens never getting a second quota, and Labor's #4 and #6 (!) clearing quota by such small margins, the only left-wing votes distributed were of the left-wing micros.  The second reason is that as the end of the count approaches, votes that have gone across party lines (including those where the voter has donkeyed part of the ballot) pool with the last few candidates remaining.  It happens that in this case the last four large vote transfers involved the Shooters Fishers and Farmers, Family First and two Liberals.  This doesn't mean the votes exhausted at these stages necessarily all started out as votes for conservative parties.

What is especially interesting here is that Bernard Gaynor is involved with the so-called Australian Liberty Alliance.  He now complains about One Nation not beating the Greens, but this is something his own party contributed to to a very small degree by not preferencing One Nation anywhere on their Tasmanian how-to-vote card!  Oops!

Reason for a recount? Or a rethink?

Mr Gaynor thinks the issues he has identified are reasons for a nation that according to much of the right is facing a budgetary crisis to be expending money on an expensive Senate recount.  He thinks the issues he has identified are a threat to public confidence in the integrity of the system. In reality, the non-issues he has identified are reasons for him to in future get a clue about electoral law before fanning suspicion where none is justified.

If anything, by calling for a recount on grounds that are not warranted and in a situation where the time for one has passed, Mr Gaynor is more likely to damage public confidence in the system and fuel daft conspiracy theories about the Tasmanian Senate results being wrong. Though not that much, since not many people will take him seriously. To do this without bothering to research the issues first is completely irresponsible, and is wasting the time of those who have signed his petition (312 gullible souls to date).  But if he has spent a few hours doing that instead of applying a similar lack of logic to his more normal targets, then that is probably a good thing for us all.

I Can't Resist!

Indeed on that score, I've kept it all pseph til now, but there's one thing I just have to say.  Mr Gaynor, in complaining about Nick McKim's election (though he never mentions McKim by name, because he wants us to think he is like Sarah Hanson-Young), says that "The Greens are anti-marriage and want to stop Australians having any say on this issue."

No Mr Gaynor, you are anti-marriage, and you want to stop the only say that should matter.

The Greens, in common with anyone with even the most primitive capacity for equal protection and fairness under the law, want to increase the number of couples who are allowed to marry.  You want to stop this even while marriage rates have been trending down for decades. In the process you want to damage the institution by making it look more with every passing day like an outdated sexist ceremony fit only for religiously-motivated exclusivists who want to deny the social recognition they enjoy to other couples for no intelligible reason.

People can say pretty much what they like on this issue, but the only say that should actually count under law is "I do", by such couples as want to say it.  You want to stop the only say that should matter from being said, in the name of a claimed "threat" to marriage that is utterly non-existent, and a completely illusory idea that the majority have any business interfering in the business freedom of celebrants and equality under the law.  This from someone who claims to stand for Liberty?

While that's your view, long may your side keep losing in Tasmania!


  1. I'd never heard of this Gaynor. Now I've skimmed that I'll try to forget the name again.

  2. Totally weird, but it IS Tasmania. But he has already sucked 3 or 4 people into his net. The issue of counting integrity is worrying a few of us at the moment, but he will not help by making the argument irrational.

    PS Just a tech note:- you can use a line editor to edit the votes cells in the CSV file to get rid of the quotes, then they are all true CSVs and can load directly into (e.g.) Excel as separate cells.
    thus (Beware line wrap):
    Braddon Queenstown PPVC 187 4 26 * 1 * * * * * 2 * * * * 3 * * * * * * * * 1 2 3 4 5 6

    I was particularly taken with the Queenie PPVC - I was born just around the corner from it.

  3. It should be noted that this Bernard Gaynor is not the Bernard Gaynor who was Ronald Ryan's solicitor.