Election challenges

With local elections taking place this week, Returning Officers and their teams may be considering what options are open to the disgruntled candidate or elector who seeks to challenge a result. Emyr Thomas explains.

Problems at the count? Act quickly!

If, following the declaration, something significant happens which could give rise to a challenge (for instance a bag of postal ballot papers is delivered unexpectedly), it is possible under the election rules to apply to the county court for an order that the sealed envelopes, including the ballot papers, be opened and inspected. This local and relatively inexpensive process can be used to assess whether there might be grounds for an election petition and requires action within days of the election. On no account should any informal count or opening of envelopes take place after the declaration without a court order.

Means of challenge

The only way in which the result of an election can be challenged or questioned is by means of an election petition. The petition is the document issued in the High Court which starts the challenge.

Deadlines

A local government election petition must be issued within 21 days of the election. Where a petition includes a complaint of a corrupt practice which involves, to put it broadly, unlawful payment of money after the election, the key date is 28 days after the date of the payment.

Who may present a petition?

A local government election petition can be presented by four or more persons who voted at the election or had the right to vote, or by a candidate. If the Returning Officer’s conduct is complained of, the Returning Officer may be a respondent to a petition. The successful candidate must always be a respondent.

Contents of the petition

The petition must set out the petitioner’s capacity to present the petition, the date and result of the election, and the grounds on which relief is sought and the relief claimed.

Grounds for challenge

An election may be challenged on the ground that the person whose election is questioned was at the time of the election disqualified or was not duly elected, or on the ground that the election was avoided by corrupt or illegal practices, for general corruption or for employing a corrupt agent. Whether a candidate “was not duly elected” usually means that the candidate did not have a majority of the votes. The remaining grounds all concern what generally may be called wrongdoing in respect of the election.

Acts or omissions by the Returning Officer

No local election will be declared invalid because of an act or omission on the part of the Returning Officer or, any other person in breach of an official duty in connection with the election, if it appears that the election was conducted so as to be substantially in accordance with election law and the act or omission did not affect the result.

If it is shown that an election was not conducted in accordance with election law, the election will only be set aside if either the breach was serious enough to make a significant difference to the election process; or if the breach, though itself trivial, did affect the result. For instance, if there was a counting error affecting the result.

Security for costs

At the time of presenting the petition (or within three days of doing so) the petitioner must give security for costs payable by him to any witness summoned on his behalf or to any respondent. For a local government election, the security will be no more than £2,500.

Within five days after giving security, the petitioner must serve on the respondent and the Director of Public Prosecutions (i) a notice of the presentation of the petition, (ii) details of the security given and (iii) a copy of the petition. These are mandatory time limits, and the court does not have the power to allow service out of time.

Steps to take if served with a petition

The Returning Officer should check that the petition and accompanying documents have been served within the strict time limits described above.

The process of service is also important since there is case law to say that imperfect service can lead to the petition being struck out. Returning Officers should therefore ensure that notes are made of the exact times and dates at which petitions or other documents are delivered, and a note should be made of where documents were received. Envelopes and covering letters should be kept and date stamped, times noted, and a note taken of the precise documents which fall out of the envelopes in which documents have been delivered.

If there are any problems during the election, it is good practice to make a contemporaneous note of what was said and done and of any advice given. If the matter proceeds to a trial of the petition, an accurate note will be invaluable to the Returning Officer and will no doubt assist the election court as well.

Emyr Thomas is a partner at Sharpe Pritchard LLP. He can be contacted on 0207 405 4600 or by email.