Sight impaired voters and the secret of the ballot box

12 May 2019 by Rosalind English

How can someone who suffers from severely limited sight avail herself of the process for making a mark on a paper ballot under the Representation of the People Act 1983?

In R (on the application of Rachel Andrews v Minister for the Cabinet Office [2019] EWHC 1126 (Admin) Swift J was presented with this very question, as the claimant, a sufferer from myopic macular degeneration who has been registered blind since 2000, was unable to vote without assistance, “either from the Presiding Officer at a Polling Station or a companion”

The main basis for her claim was that the regulations under the 1983 RPA have failed to achieve the purpose of prescribing the use of a device that enables blind and partially sighted voters to vote without assistance.

In the judgment, Swift J refers as short hand to “blind voters”, rather than “blind and partially sighted voters”.

Under challenge were the provisions for voting for blind voters. Rule 37 sets out the procedure thus:

The voter, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the number and other unique identifying mark, and put the ballot paper so folded up into the ballot box in the presiding officer’s presence.

The provision for blind voters is limited to “at least one large version of the ballot paper” to be displayed at the polling station and

A device of such description which may be prescribed for enabling voters who are blind or partially-sighted to vote without the need for assistance from the presiding officer or any companion.

The device prescribed is a “tactile voting device” made from a sheet of plastic with a number of tabs, printed in Braille, corresponding to the number of candidates standing in the constituency. However there are a number of shortcomings with the TVD, including the fact that a blind person has no way of knowing the name of the candidate or the name of the party the candidate represents. The TVD only permits a blind person to vote without assistance if she or he has memorised the order of candidates on the ballot paper.

The claimant contended that this was unsatisfactory. Without the assistance of the poll officer or a companion there was no way that she could mark her ballot paper against the name of the candidate she wished to vote for. It was not realistic, she contended, to expect her to memorise not only all the names of the candidates but the order in which they appeared on the ballot paper. In the 2009 by-election in her constituency for example there were twelve candidates. The position becomes even more complicated if more than one election takes place on the same day.>

This effectively denied her the opportunity to cast her ballot in secret.

The question before the court was the precise meaning of the words in Rule 29(3A) making provision for blind voters:

…a device … for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion …

The judge concluded that a device that enabled a blind voter to vote without the need for the assistance that could be provided by a Presiding Officer or companion would need to do more than the present TVD.

It would, at the least, have to comprise a fuller TVD of the sort suggested by the Claimant, which in addition to the numbered tabs has the name of each candidate and/or the party she stands for, either in raised lettering, or Braille, or both.

This was because of what it means to vote, which extends beyond the dictionary definition of the word. The respondent claimed that it meant the mere marking of one of the areas indicated on the ballot paper. But, in Swift J’s view, there was more to it, as indicated by the rules on spoilt ballot papers, which reflect

the clear (and to my mind obvious) connection between marking the ballot paper and choice. Voting under the rules means marking a ballot paper so as to indicate an intention to vote for one or other candidate….A device that does no more than enable blind voters to identify where on a ballot paper the cross can be marked, without being able to distinguish one candidate from another, does not in any realistic sense enable that person to vote. Enabling a blind voter to mark ballot papers without being able to know which candidate she is voting for, is a parody of the electoral process established under the Rules. [paras 21 – 22]

His conclusion was that the present TVD did not represent the fullest possible use of the power at Rule 29(3A). In order to enable a blind person to vote, a device must allow the blind voter to mark the ballot paper against the name of her candidate of choice. Declaratory relief was ordered to that effect.