No Proof Early Results Sway Voters: Court

Wednesday, August 14th, 2019

The High Court dismissed a bid by businessman Clive Palmer to delay the publication of voting results on federal election night because there was no factual basis to his argument that knowing the two candidates most likely to win a seat influenced anyone’s vote.

In May, just over a week before the election, the court rejected Mr Palmer’s call to keep election night results quiet until all polling booths had closed around Australia, lest last-minute voters in far-flung locations be swayed by early results.

He was worried West Australians who waited until the last two hours of election day to cast their ballots could be influenced by predictions from the other side of the country.

The full bench of the High Court unanimously ruled the Australian Electoral Commission did not need to wait for stragglers in WA before broadcasting figures for east coast seats.

In reasons for the decision, published on Wednesday, the judges said the argument by Mr Palmer and his United Australia Party candidate “lacked factual foundation”.

“There were no facts showing that publication of the (two-candidate preferred) information had any effect on the electoral choices of voters in divisions where the polls had not closed,” the majority judgment, written by six of the justices, said.

An AEC computer nominates the two candidates most likely to be the top runners for a seat based on previous election results, and this is reviewed by each state’s electoral officer.

The two names are put in a sealed envelope and kept secret until polls close and counting starts, after 6pm on election day.

As the count proceeds, if it becomes apparent another candidate is in the running, the AEC will hide the two-candidate preferred projections on its website.

In 2016, this process included the eventual winner in every seat, and in 2013 it did so in all electorates bar two.

The court said this was merely a predictive exercise and was generally accurate.

“It is not an expression by the (electoral) commission of any opinion favouring one candidate over another and, thus, is not a form of partiality.”

The Palmer team relied on academic articles examining elections in the US, France and Denmark to back its argument.

But the judges said these did not help the argument at all – and one even found there was no effect on parliamentary elections.

Justice Stephen Gaegler, in separate reasons, said there was some merit in the legal arguments Mr Palmer put forward, but they fell over because they lacked any proof the timing of publishing the likely winners had an actual effect on votes.

 

Photo credit: Con Tassios [CC BY 3.0 (https://creativecommons.org/licenses/by/3.0)]

 

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