Tendered Ballots What does the Electoral Act say about them?

Tendered ballots allow voters to cast their ballots for president and for the National Assembly outside the constituency where they are registered as voters.

The issue of how tendered ballots should be treated has recently been the topic of some debate. This column reviews what the Electoral Act 5 of 2014 says.

To assist those who have a particular interest in this issue, references to the relevant sections of the act are included in brackets.  

When are tendered ballots allowed?

Voters must cast their ballots for regional and local authority councillors in the constituency or local authority area where they are registered (section 98(1)).

But voters unable to go to a polling place in the constituency where they registered are allowed to cast ballots for president and the National Assembly at any polling station (section 98(6)).

What is supposed to happen when a voter casts a tendered ballot?

Every polling station must keep a list of the voters who cast tendered ballots (section 100(17)).

There is a special form for this in the Regulations for Conduct of Elections (Form 39). This form is supposed to list the voter registration number of each voter who cast a tendered ballot, and the constituency where that voter is registered.

This helps reconcile the number of ballots cast with the number of registered voters.

Are there any other rules about voting outside your place of registration?

There is one other special category of ballots called “authorisation ballot papers”.

These are for election officials or police officers with employment duties on election day that prevent them from voting where they registered.

This must be confirmed by a written authorisation issued by the Chief Electoral Officer.

Provision is made for these people to vote on a special voting day before the election.

All authorisation ballot papers are placed inside an envelope that goes into a ballot box separate from the ballot boxes used for ordinary ballot papers.

It is useful to know about this category of ballots because “authorisation ballot papers” are mentioned alongside “tendered ballot papers” in many Electoral Act provisions.

What is supposed to happen to tendered ballots and authorisation ballots?

Tendered ballots and authorisation ballots are included in the return for the polling station where the voter cast the ballot (section 98(6)).

When the polls close, the presiding officer at each polling station is supposed to open all the ballot boxes and take out the ballot papers (section 105(1) and (2)(a)).

Here is where things become confusing.

The act says a presiding officer must do three things with paper ballots when the polls close: (a) open all the ballot boxes and remove the “ordinary ballot papers”; (b) open all the authorisation ballot paper envelopes and remove the “authorisation ballot papers”; and (c) record the seal numbers of the ballot boxes containing these ballots.

The problem here is that this provision has some confusing cross-references that make its meaning somewhat unclear. And it gets more confusing.

The act says the presiding officer, assisted by the counting officers, is supposed to count the votes recorded on these different sets of ballot papers separately – but again, the cross-references referring to the different categories of ballot papers do not make sense.

We can guess at what went wrong here by looking back at the Electoral Bill [B.10-2014].

That bill originally contained a requirement that tendered ballots must be placed in separate ballot boxes and counted separately (section 105(1)).

That requirement was removed from one provision of the bill during debates in the National Assembly, but the cross-references were not amended to harmonise with the change – and the other references to separate ballot boxes and separate counts of tendered ballots in the bill were not changed.

The ‘return’

The result is that the final version of the law still refers to separate ballot boxes for tendered ballots and indicates that tendered ballots must be counted separately.

The act directs the presiding officers at each polling station to compile different types of ballot papers into separate, sealed packets and deliver them to the returning officer after the count has taken place: all ballot boxes containing counted ordinary ballot papers; all ballot boxes containing counted tendered vote ballot papers; all authorisation ballot paper envelopes that contained authorisation ballot papers; all unused ballot papers; all cancelled spoilt ballot papers; all rejected ballot papers; and all ballot papers where the presiding officer could not determine the voter’s choice (section 105(9)).

These sealed packets and ballot boxes must be accompanied by returns in which the presiding officer accounts for the number of counted ordinary ballot papers, counted tendered ballot papers, authorisation ballot papers, unused ballot papers, spoilt ballot papers and rejected ballot papers (section 105(11)).

All of this information is part of the “return” of each polling station (section 98(6)).

Verification

The section of the law on verification of returns again refers to separate counts for tendered ballots.

The returning officer is required to open all the sealed packets received from each polling station and verify the correctness of the return furnished by the presiding officer for that polling station.

If a recount is ordered, ordinary ballots, tendered ballots and authorised ballots are still supposed to be dealt with separately and contained in separate packets (section 108).

So there is some confusion in the law about the treatment of tendered ballots – what does this mean at the end of the day?

An Electoral Commission of Namibia representative recently stated in the commission’s WhatsApp group for the media that the remaining references to separate ballot boxes and counts for tendered ballots are “superfluous”.

But there is a standard tenet of statutory interpretation which requires that statutes must be interpreted so that every part of the statute means something, if possible.

Only the courts can definitively decide how confusing parts of the Electoral Act fit together – but since several provisions of the law refer to separate ballot boxes and separate counts for tendered ballots, it is possible (and perhaps even likely) the law would be interpreted to require separate counting of tendered ballots.

• Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.