Bradfield Court Of Disputed Returns Challenge

BRADFIELD (NSW, IND, 0.01)
Disputed Returns challenge to win by Nicolette Boele over Gisele Kapterian (Lib) by 26 votes

This is an ongoing thread to follow the challenge by Gisele Kapterian (Liberal) to Nicolette Boele's (IND) victory by 26 votes in the seat of Bradfield.  This is the first CDR challenge by a candidate to be based on the count, rather than eligibility or alleged misconduct issues, since Fran Bailey's (Liberal) win in McEwen 2007 was challenged by now MP for the seat Rob Mitchell (ALP).  On comments about the case available so far the case is likely to be very similar to McEwen in proceedings.

I previously covered the main part of the Bradfield postcount in a general teal seat postcount thread and the late postcount (distribution of preferences phase) and recount in a Bradfield specific thread.  I also covered the Goldstein partial recount and count history on a separate thread that may be useful for comparisons.  

Boele had been down for the count at times in the initial count but got back up again, mainly on a very strong batch of out of electorate prepolls followed by the very last batch of postals breaking strongly to her (not such an unusual thing).  She went into the distribution of preferences 40 votes ahead but dropped back through the distribution to finish it 8 votes behind.  This is not surprising because in the distribution the votes that get the most attention are votes for minor candidates, so the candidate more reliant on preferences is more likely to suffer if votes are found to be informal on further scrutiny.  The recount has the opposite dynamic - at this stage the primary votes of the leaders have been less checked than the preferences, and so this can hurt the primary vote leader.  Which it did.  Boele started very slowly in the recount and was still three votes behind and running out of booths when there was a big shift to her in the Turramurra PPVC, which was the last big prepoll to be recounted.  Boele also then made gains in other booths in the St Ives and Turramurra areas and finished 26 votes ahead.  

Unlike the Goldstein postcount which saw several large corrections and errors before the result was eventually established, the Bradfield postcount and recount was about as smooth to these outside eyes as these things get.  The corrections were generally small and on the scale of what is generally expected - changes of rulings on specific votes, very minor counting corrections and just one correction of slightly larger size (a 22 vote correction in Kapterian's favour).  The 15-vote swing to Kapterian in Turramurra PPVC was on formality rulings, not a counting error.

The Liberals floated a possible challenge on June 8 and I noted that none of the claimed grounds were convincing. Claimed reasons for concern were that the distribution of preferences and the recount had different winners (not surprising for the reasons stated above), that the number of informal votes increased (not surprising because sequence errors can easily be missed in the earlier counting stages) and that the number of total votes increased (not surprising because the AEC does not know for sure at the start of the count exactly how many ballot papers there are and some slight movement in this total is normal).  

There was not until now any public suggestion that the Liberals had issues with AEC interpretations of specific votes.  While there will always be some lineball votes that the losing side might object to, there has also not been any suggestion that there are systematic errors.  The Liberals will have to argue that there are a number of errors sufficient to overturn the margin so it will be interesting to see what those arguments are.  If there were persistent patterns of suspect rulings I would expect these to have come to notice by now and the lack of such seems unpromising for their chances of getting enough votes overturned.  

I have not yet seen the petition and will comment on it if/when available but the media reports so far indicate that is wholly about ballot paper interpretation; indeed Kapterian has stated that the petition does not seek a by-election (as could be the case if the Liberal Party was arguing voters were deprived of the ability to vote, or voted who should not have done.) The framing of the Liberal Party's decision to lodge the challenge is that this is about giving their candidate every chance by sending the reserved ballots to the "third umpire".  

The process

The 2008 McEwen case was referred by the High Court to the Federal Court and decided by a single judge; I expect this one will be so too, as it is a fact and evidence heavy matter involving the interpretation of electoral law, and not a constitutional matter.

Assuming that is so, the court will examine the reserved ballots (about 800 that were challenged and decided on by the Electoral Officer for NSW during the recount).  Following this the court can make the following decisions:

* The result stands.

* The result is reversed and Kapterian wins.  In this case Boele would lose her seat immediately and be replaced by Kapterian.

* The election is void.  In this case the seat is vacated and a by-election is held with a fresh nominations process; both Boele and Kapterian would presumably run again.  However, this would only occur if at the end of the process the court ruled the correct result was a tie, or perhaps so close to a tie that after taking multiple voting into account a winner could not be decided.  (The number of unexplained multiple markoffs in Bradfield is understood to be just two).

The court can also modify the margin.  This happened in the McEwen case twice with the court initially amending the margin from 12 to 27 votes then later giving a supplementary ruling that changed it to 31.

There may be procedural legal argument but I would expect that at some point the judge will end up examining all the reserved ballots and producing a table listing the results of the re-examination. 

The court is obliged to decide the case as quickly as it reasonably can.  In 2008 the Court took just over four months to dismiss the petition from its lodging.  This would take us to close to the end of the year.  It may be that this case can be faster if there is less preliminary argument than in 2008.

Mitchell v Bailey (2008 McEwen case)

The McEwen main judgement is well worth a read as background to this case for those interested; it is likely to be referred to frequently.  Many votes had been ruled informal where there was a reasonable interpretation that allowed them to be ruled formal.  For instance a ballot paper contains the numbers 1,2,3,4,6,7,8 and a figure that could plausibly in isolation be the letter S or the number 5.  Intuitively it is overwhelmingly likely the voter intended to write a 5 and happens to write their 5 in a way that could also look like an S.  Largely as a result of such issues the Court changed 141 ballots from informal to formal and only twelve from formal to informal.  The number of votes for Mitchell that were fished out of the informal pile easily exceeded the margin, but the judge did not only examine the votes Labor objected to but examined all the reserved votes and found that Bailey had been more disadvantaged by incorrect formality calls than Mitchell.

(It is not clear from the judgement text what became of the infamous "V8 Supercar" vote on which the voter according to Labor's petition had numbered all the boxes, crossed out the names of the candidates and replaced them with the names of motor racing drivers.)

The rulings made in the McEwen case are very well known and are reinforced in AEC practice so I would expect that the chance of blatant errors here is a lot lower and that the chance of a margin shift even of the size of that in McEwen isn't high.  But we will see.  

Updates will be added as the case proceeds and a link will remain in the sidebar in the Upcoming and Recent Elections section.