A handbook of the law relating to the management of parliamentary, municipal and county council elections

Preface

npHIS handy book is designed for persons who may require, in a compendious form and for immediate use, a brief statement of the Law relating to the machinery of Elections. The Ballot Act, 1872, and those portions of the Local Government Act, 1888, and the Municipal Corporations Act, 1882, which refer to the conduct of Elections are printed in an annotated form ; a chapter showing the effect of breaches of the provisions of the Acts upon all Election and a Table of References to the Statutes which prescribe the procedure at Parliamentary, Municipal and County Council Elections being added, with the view of enabling everyone to ascertain what the law is, and where it may be found.

HENRY STEPHEN

1, Mitre Court Buildings, Temple.

212911

PARLIAMENTARY, MUNICIPAL AND COUNTY COUNCIL ELECTIONS.

The Law relating to Procedure at Parliamentary, Municipal and County Council elections is contained in the Ballot Act, 1872, the Municipal Corporations Act, 1882, the Local Government Act, 1888, and the Corrupt Practices Acts of 1883 and 1884.

With regard to the nomination of candidates at parliamentary elections the Ballot Act (35 & 36 Vict. c. 33) enacts that :—

Whereas it is expedient to amend the law relating to procedure at parliamentary and municipal elections :

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : —

1. A candidate for election to serve in parliament Nomination for a county or borough shall be nominated in ^teTfor writing. The writing shall be subscribed by two pai-iiaregistered electors of such county or borough as mentary proposer and seconder, and by eight other registered e ' electors of the same county or borough as assenting to the nomination, and shall be delivered during the time appointed for the election to the returning officer by the candidate himself, or his proposer or seconder.

If at the expiration of one hour after the time appointed for the election no more candidates stand " nominated than there are vacancies to be filled up, the returning officer shall forthwith declare the candidates who may stand nominated to be elected, and return their names to the Clerk of the Crown in Chancery ; but it" at the expiration of such hour more candidates stand nominated than there are vacancies to be filled up, the returning officer shall adjourn the election and shall take a poll in manner in this Act mentioned.

A candidate may, during the time appointed for the election, but not afterwards, withdraw from his candidature by giving a notice to that effect, signed by him, to the returning officer ; Provided that the proposer of a candidate nominated in his absence out of the United Kingdom may withdraw such candidate by a written notice signed by him and delivered to the returning officer, together with a written declaration of such absence of tlie candidate.

If after the adjournment of an election by the returning officer for the purpose of taking a poll one of the candidates nominated shall die before the poll has commenced, the returning officer shall, upon being satisfied of the fact of such death, countermand notice of the poll, and all the proceedings with reference to the election shall be commenced afresh in all respects as if the writ had been received by the returning officer on the day on which proof was given to him of such death : Provided that no fresh nomination shall be necessary in the case of a candidate who stood nominated at the time of the countermand of the poll.

For the nomination of candidates at Municipal and County Council elections reference must be made to the Municipal Corporations Act, 18S2 (45 & 46 Vict. c. 50), and the Local Government Act, 1888 (51 & 52 Vict. c. 41). The former of these Acts enacts : —

Nomination 53. At an election of councillors for a whole

of can ii- borough the returning officer shall be the mayor.

municipal (2.) At an election for a ward the returning

and <'"]mty officer shall be the alderman assigned for

elections. that purpose by the council at the meeting

of the 9th of November.

54. Nine days at least before the day for the

election of a councillor, the town clerk shall prepare and sign a notice thereof and publish it by fixing it on the town hall, and, in the case of a ward election, in some conspicuous place in the ward.

55. The nomination of candidates for the office of councillor shall be conducted in accordance with the rules in Part II. of the Third Schedule.

56. (1.) If the number of valid nominations exceeds that of the vacancies, the councillors shall be elected from among the persons nominated.

(2.) If the number of valid nominations is the same as that of the vacancies, the persons nominated shall be deemed to be elected.

(3.) If the number of valid nominations is less than that of the vacancies, the persons nominated shall be deemed to be elected, and such of the retiring councillors for the borough or ward as were highest on the poll at their election, or, if the poll was equal, or there was no poll, as are selected for that purpose by the mayor, shall be deemed to be re-elected to make up the required number.

(4.) If there is no valid nomination, the retiring councillors shall be deemed to be re-elected.

57. If an election of councillors is not contested, the returning officer shall publish a list of the persons elected not later than eleven o'clock in the morning on the day of election.

Rules as to Nomination in Elections of Councillors.

1. Every candidate for the office of councillor, must be nominated in writing.

2. The writing must be subscribed by two burgesses of the borough, or, in the case of a ward election, of the ward, as proposer and seconder, and by eight other burgesses of the borough or ward, as assenting to the nomination.

3. Each candidate must be nominated by a separate nomination paper, but the same burgesses, or any of them, may subscribe as many nomination papers as there are vacancies to be filled, but no more.

4. Each person nominated must be enrolled in the burgess roll, or entered in the separate non-resident list required by this Act to be made.

5 . The nomination paper must state the surname and other names of the candidate, with his abode and description.

6. The town clerk shall provide nomination papers, and shall supply any burgess with as many nomination papers as may be required, and shall, at the request of any burgess, fill up a nomination paper.

7. Every nomination paper subscribed as aforesaid, must be delivered by the candidate or his proposer, or seconder, at the town clerk's office, seven days at least before the day of election, and before five o'clock in the afternoon of the last day for delivery of nomination papers.

8. The town clerk shall forthwith send notice of every such nomination to each candidate.

9. The mayor shall attend at the town hall on the day next after the last day for delivery of nomination papers for a sufficient time, between the hours of two and four in the afternoon, and shall decide on the validity of every objection made in writing to a nomination paper.

10. Where a person subscribes more nomination papers than one, his subscription shall be inoperative in all but the one which is first delivered.

11. Each candidate may, by writing signed by him, or, if he is absent from the United Kingdom, then his proposer or seconder may, by writing signed by him, appoint a person (in this schedule referred as the candidate's representative) to attend the proceedings before the mayor on behalf of the candidate, and this appointment must be delivered to the town clerk before five o'clock in the afternoon of the last day for delivery of nomination papers.

12. Each candidate and his representative, but no other person, except for the purpose of assisting the mayor, shall be entitled to attend the proceedings before the mayor.

13. Each candidate and his representative may, during the time appointed for the attendance of the mayor for the purposes of this schedule, object to the nomination paper of any other candidate for the borough or ward.

14. The decision of the mayor shall be given in writing, and shall, if disallowing an objection, be final, but if allowing an objection, shall be subject to reversal on petition questioning the election return.

15. The town clerk shall, at least four days before the day of election, cause the surnames and other names of all persons validly nominated, with their respective abodes and descriptions, and the names of the persons subscribing their nomination papers as proposers and seconders, to be printed and fixed on the town hall, and in the case of a ward election, in some conspicuous place in the ward.

16. The nomination of a person absent from the United Kingdom shall be void, unless his written consent given within one month before the day of his nomination in the presence of his witnesses is produced at the time of his nomination.

17. Where the number of valid nominations exceeds that of the vacancies, any candidate may withdraw from his candidature by notice signed by him, and delivered at the town clerk's office not later than two o'clock in the afternoon of the day next after the last day for delivery of nomination papers : Provided that such notices shall take effect in the order in which they are delivered, and that no such notice shall have effect so as to reduce the number of candidates ultimately standing nominated below the number of vacancies.

18. In and for the purposes of the provisions of this Act relating to proceedings preliminary to election, the burgess roll or ward roll, and a person whose name is inserted in one of the lists from which the burgess roll or ward roll will be made up, shall be deemed to be enrolled in that roll although that roll is not yet completed.

And these sections and schedule have been adopted by the latter of the statutes mentioned above with certain modifiestions contained in the 75th section, which provides in subsections :

(4.) A reference in this Act, or in the enactments applied by this Act to the returning1 officer or to the mayor or to the alderman shall, so far as relates to the election of any such councillor, be construed to refer to the returning officer, and any such deputy as above mentioned.

(5.) A reference in the said enactments to the town clerk so far as respects the election of any such councillor shall be construed to refer to the returning officer or his deputy, and as respects matters subsequent to the election shall be construed to refer to the clerk of the county council.

(6.) In a borough the returning officer for the purpose of the election of councillors of the borough shall continue to be the same as heretofore, and where an electoral division of the county is co-extensive with or wholly comprised in such borough, shall at the election in such division of a councillor of the county council act as the returning officer in pursuance of a writ directed to him from the county returning officer, and so far as respects that election shall follow the instructions of, and return the names of the persons elected to the county returning officer in like manner as if he were a deputy returning officer, and any decision of an objection shall be subject to revision by the county returning officer accordingly, and a reference in the said enactments to the town clerk shall, as respects the borough, be construed to refer to the town clerk.

(7.) Some place fixed by the returning officer shall, except where the election is in a borough, be substituted for the town clerk's office, and, as respects the hearing of objections to nomination papers, for the town hall, but such place shall, if the electoral division is the whole or part of an urban district, be in that district, and in any other case shall be in the electoral division or in an adjoining electoral division.

(8.) The returning officer shall forthwith, after the election of county councillors for the county, return the names of the persons elected to the clerk of the county council.

(9.) The period between the nomination and election may be such period, not exceeding six days, as the returning officer may fix.

The following cases on the construction of these sections are useful: Mather v. Brown, L.R.I, C.P.D. 596, 45 L.J. Q.B. 547, and Henry v. Armitage L.R. 12 Q.B.D. 257, 53 L.J. Q.B. Ill, which relate to the filling up of nomination papers as to name; Soper v. Mayor of Basingstoke, L.R. 2 C.P.D. 440, 46 L.J. C.P. 422 as to the abode of candidate. As to the power of the returning officer to decide objections : Howes v. Turner 1 C.P.D. 670, 45 L.J. Q.B. 550 ; Monks v. Jackson, 1 CD. 683, 46 L.J. Q.B. 162, in which cases it was held that the returning officer could only decide whether the form of the paper was correct, and not whether it was delivered early enough.

At contested parliamentary elections the second section of the Ballot Act enacts that : —

2. In the case of a poll at an election the votes Poll at shall be given by ballot. The ballot of each voter elections, shall consist of a paper (in this Act called a ballot paper) showing the names and description of the candidates. Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting the ballot paper shall be marked on both sides with an official mark, and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on the counterfoil (a), and

(a. J The question was raised, but not decided, in Pickering v. Startin, 28 L. T. Ill, whether the failure of the returning officer to mark on the counterfoils of twenty-nine of the voting papers the number of the voter appearing on the burgess roll would avoid the election. It is submitted such an irregularity would not have that effect. See pp. 62-65.

the voter having secretly marked his vote on the paper, and folded it up so as to conceal his vote shall place it in a closed box in the presence of the officer presiding at the polling station (in this Act called " the presiding officer ") after having shown to him the official mark at the back.

Any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything, except the said number on the back, is written or marked by which the voter can be identified, shall be void, and not counted (a).

After the close of the poll the ballot boxes shall be sealed up, so as to prevent the introduction of additional ballot papers, ard shall be taken charge of by the returning officer, and that officer shall, in the presence of such agents, if any, of the candidates as may be in attendance, open the ballot boxes, and ascertain the result of the poll by counting the votes given to each candidate, and shall forthwith declare to be elected the candidates or candidate to whom the majority of votes have been given, and return their names to the Clerk of the Crown in Chancery. The decision of the returning officer as to any question arising in respect of any ballot paper shall be final, subject to reversal on petition questioning the election or return.

Where an equality of votes is found to exist between any candidates at an election for a county or borough, and the addition of a vote would entitle any of such candidates to be declared elected, the returning officer, if a registered elector of such county or borough, may give such additional vote, but shall not in any other case be entitled to vote at an election for which he is returning officer.

And this section is, by the fifty-eighth section of the Municipal Corporations Act and the seventy-fifth section of the Local Government Act, applied to contested municipal

(a.) The cases hearing upon the rejection of ballot papers for informalities, &C, are collected at pp. G'2-65.

and county council elections. The former of these sections is as under : —

(1.) If an election of councillors is contested, the poll shall, as far as circumstances admit, be conducted as the poll at a contested parliamentary election is by the Ballot Act, 1872, directed to be conducted, and subject, to the modifications expressed in Part III. of the Third Schedule, and to the other provisions of this Act the provisions of the Ballot Act, 1872, relating to a poll at a parliamentary election (including the provisions relating to the duties of the returning officer after the close of the poll), shall apply to a poll of an election of councillors.

(2.) Every person entitled to vote may vote for any number of candidates not exceeding the number of vacancies.

(3.) The poll shall commence at eight o'clock in the forenoon and close at eight o'clock in the afternoon of the same day (48 Vict. c. 10).

(4.) But if one hour elapses during which no vote is tendered, and the returning officer has not received notice that any person has within that hour been prevented from coming to the poll by any riot, violence, or other unlawful means, the returning officer may, if he thinks fit, close the poll at anytime before eight o'clock (48 Vict. c. 10).

(5.) Where an equality of votes is found to exist between any candidates, and the addition of a vote would entitle any of those candidates to be declared elected, the returning officer, whether entitled or not to vote in the first instance, may give such additional vote by word of mouth or in writing.

(6.) Nothing in the Ballot Act, 1872, as applied by this Act shall be deemed to authorise the appointment of any agents of a candidate at a municipal election, but if in the case of a municipal election, an agent of a candidate is appointed, and notice in writing of the appointment is given to the returning officer one clear day before the polling day, then the provisions of the Ballot Act, 1872, with respect to agents of candidates, shall as far as regards that agent, apply in the case of that election.

With regard to offences at all elections the Ballot Act provides that : —

3. Every person who —

(1.) Forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the returning officer any nomination paper, knowing the same to be forged ; or (2.) Forges or counterfeits or fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper ; or (3.) Without due authority supplies any ballot

paper to any person ; or (4.) Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorised by law to put in ; or (5.) Fraudulently takes out of the polling station

any ballot paper ; or (6.) Without due authority destroys, takes, opens, or otherwise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election ; shall be guilty of a misdemeanor, and be liable, if he is a returning officer or an officer or clerk in attendance at a polling station to imprisonment for any term not exceeding two years, with or without hard labour, and if he is any other person, to imprisonment for any term not exceeding six months with or without hard labour.

Any attempt to commit any offence specified in this section shall be punishable in the manner in which the offence itself is punishable.

In any indictment or other prosecution for an offence in relation to the nomination papers, ballot boxes, ballot papers, and marking instruments at an election, the property in such papers, boxes, and instruments may be stated to be in the returning officer at such election, as well as the property in the counterfoils.

In Reg. v. Beardsall (1 Q. B. D. 452), a deputy returning officer at a municipal election was convicted of an offence under this section. The court decided in that case that production of ballot papers, &c, can be ordered by a County Court Judge under Rule 64 of Part II., Schedule I. of the Act, in aid of a prosecution for an offence against the Ballot Act.

4. Every officer, clerk, and agent in attendance at Infringea polling station shall maintain and aid in maintain- ment of ing the secrecy of the voting of such station, and shall not communicate, except for some purpose authorised by law, before the poll is closed, to any person any information as to the name or number on the register of voters of any elector who has or has not applied for a ballot paper or voted at that station (a), or as to the official mark, and no such officer, clerk, or agent, and no person whosoever, shall interfere with or attempt to interfere with a voter when marking his vote, or otherwise attempt to obtain in the polling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communicate at any time to any person any information obtained in a

(a.) In order to justify a conviction under this part of the section, it must be shown that the information reached the mind of the person to whom it is communicated, and it is not enough to show that such person had the means of knowing it. Therefore, where the evidence was that the personation agent had gone from the polling station to the committee room of the candidate for whom he was agent, and had there left his part of the burgess roll, on which, he had put a mark against the name of every voter who had obtained a ballot paper, but did not show that any one there had looked into such part of the burgess roll, or had in fact obtained any information from it, the court held that there was no evidence on which a magistrate ought to convict the <• agent. Stannanought v. Hazeldine, 4 C. P. Div. 191 ; 48 L. J. M. C. 89 ; 40 L. T. 589.

polling station as to the candidate for whom any voter in such station is about to vote or lias voted (a), or as to the number on the back of the ballot paper given to any voter at such station. Every officer, clerk, and agent in attendance at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the back of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any particular ballot paper. No person shall directly or indirectly induce any voter to display his ballot paper after he shall have marked the same, so as to make known to any person the name of the candidate for or against whom he has so marked his vote.

Every person who acts in contravention of the provisions of this section shall be liable, on summary conviction before two justices of the peace, to imprisonment for any term not exceeding six months, with or without hard labour.

5. [The first paragraph of this section is repealed by the Corrupt and Illegal Practices Act, 1883 (the 46 & 47 Vict, c. 51), 5th schedule (b) . The remaining paragraphs are not affected and are as follows] : —

The local authority (as hereinafter defined) of

(a.) Upon a charge of violating the secrecy of the ballot by telling how an illiterate voter had voted, the information communicated by the accused is, of itself, sufficient evidence to convict him of the offence. Beg. v. Unkles, 8 Ir. R., C. L. 50.

(6.) The 47th section of the Corrupt Practices Act, 1883, which is practically in substitution of the repealed portion of the above section, applies to England and Wales only, and provides that in a county, so far as is reasonably practicable, every elector shall have a polling place within a distance of three miles from his residence, and tbat in a borougb every elector shall have a polling place within one mile of his residence.

The provisions of the 5th section of the Ballot Act [supra) and of the 47th section of the Corrupt Practices Act, 1883, do not apply to Scotland or Ireland.

every borough shall take into consideration the division of such borough into polling districts, and, if they think it desirable, by order, divide such borough into polling districts in such manner as they may think most convenient for taking the votes of the electors at a poll.

The local authority of every county and borough shall, on or before the first day of May, One thousand eight hundred and seventy-three, send to one of Her Majesty's Principal Secretaries of State, to be laid by him before both Houses of Parliament, a copy of any order made by such authority in pursuance of this section, and a report, in such form as he may require, stating how- far the provisions of this Act with respect to polling districts have been complied with in their county or borough ; and if they make any order after the first day of May, One thousand eight hundred and seventy-three, with respect to polling districts or polling places in their county or borough, they shall send a copy of such order to the said Secretary of State, to be laid by him before both Houses of Parliament.

The local authority of a county or borough in this section means the authority having power to divide such county or borough into polling districts under section thirty-four of the Representation of the People Act, 1867, and any enactments amending that section ; and such authority shall exercise the powers thereby given to them for the purposes of this section ; and the provisions of the said section as to the local authority of a borough constituted by the combination of two or more municipal boroughs shall apply to a borough constituted by the combination of a municipal borough and other places, whether municipal boroughs or not ; and in the case of a borough of which a town council is not the local authority, and which is not wholly situate within one petty sessional division, the justices of the peace for the county in which such borough or the. larger part thereof in area is situate, assembled at some court of general or quarter sessions, or at some adjournment thereof, shall be the local authority thereof, and shall for this purpose have jurisdiction over the whole of such borough ; and in the case of sucli borough and of a county, a court of general sessions shall be assembled within twentyone days after the passing of this Act, and any such court may be assembled and adjourned from time to time for the purpose.

No election shall be questioned by reason of any non-compliance with tins section or any informality relative to polling districts or polling places, and any order made by a local authority in relation to polling districts or polling places shall apply only to lists of voters made subsequently to its date, and to registers of voters formed out of such lists, and to elections held after the time at which a register of voters so formed has come into force : Provided that where any such order is made between the first day of July and the first day of November in any year, and does not create any new division between two or more polling districts of any parish for which a separate poor rate is or can be made, such order shall apply to the register of voters which comes into force next after such order is made, and to elections held after that register so conies into force; and the clerk of the peace or town clerk, as the case may be, shall copy, print and arrange the list of voters for the purpose of such register in accordance with such order.

Use of 6. The returning officer at a parliamentary election

school and may usej free 0f charge, for the purpose of taking forVoiiatm the poll at such election, any room in a school receiving a grant out of moneys provided by parliament, and any room the expense of maintaining which is payable out of any local rate, but he shall make good any damage done to such room, and defray any expense incurred by the person or body of persons, corporate or unincorporate, having control over the same on account of its being used for the purpose of taking the poll as aforesaid.

The use of any room in an unoccupied house for the purpose of taking the poll shall not render any person liable to be rated or to pay any rate for such house.