Submitted by Rohin Vadera on 21/03/14

The Legality of NOTA / Right to Reject

Based on the recent ruling by the Supreme Court of India (SC) in September 2013 that electronic voting machines (EVMs) must include a ‘None of the Above’ (NOTA) option to retain the right of voters to continue to voice their will through a ‘negative vote’ (a term I dislike, by the way), I did further research based on the United Nations’ ‘Universal Declaration on Human Rights’ (UDHR) and the International Covenant of Civil and Political Rights (ICCPR) that was used in part by the SC to come to its judgement.

The full judgement is available here: http://www.pucl.org/Topics/Law/2013/vote_none.pdf

Below I paste a section from its judgement that quotes sections from the UDHR and ICCPR:

49) However correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.

(Text highlighted by myself)

The UDHR is here: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng

The ICCPR is here: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Further the SC noted the usefulness of ‘negative voting’ in its promotion of a healthy democracy.

However the NOTA option on the EVM is only the ability of a voter to abstain from voting, this abstention though noted will not affect the final result of the election. In my view this will mean that the NOTA option cannot achieve the potential described in the Supreme Court ruling below:

55) Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systematic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.

For NOTA to have a substantive impact as described above it must be able to affect the results of an election. Politicians are used to wide spread approbation, so a symbolic NOTA will be shrugged off or used in some type of political game resulting in no substantive positive changes.

Further to that, a symbolic NOTA provides little incentive for disillusioned voters to express their voice as there is no clear and unambiguous consequence to that choice, other than insecurity and uncertainty if used widely. Insecurity and uncertainty is the worst type of result in an election and so this outcome undermines the use of NOTA, as it could encourage disillusioned voters to steer clear of the voting process altogether instead of choosing NOTA.

Below I argue how the UDHR and the ICCPR have wordings that strongly imply that having a NOTA option with the power to affect an election result is a legal and logical pre-requisite in any functioning democracy. By NOTA affecting an election result I specifically mean that if NOTA achieves a majority of the valid votes cast the election should be run again.

There are some practical and logistical issues to address in having such a system, some possible solutions to which are outlined in this blog on the NOTA UK website: https://nota-uk.org/2013/11/16/nota-for-real-logistics-ramifications/

First a quick introduction to the 2 documents I have cited.

The first is UDHR – ‘While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter, which is binding on all member states’……many international lawyers,[22] believe that the Declaration forms part of customary international law’

(Text highlighted by myself)

The second is: ICCPR – the UK has signed and ratified this covenant (and so has most of the world)

From the UDHR Article 21 is relevant to NOTA, in my opinion:

• 1. Everyone has the right to take part in the government of his country directly or through freely chosen representatives.

• 2. Everyone has the right to equal access to public service in his country.

• 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

From ICCPR Article 25 is relevant:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Taking each section I have highlighted in turn:

•  ‘freely chosen representatives’ – Can representatives be said to be freely chosen if they cannot all be rejected? To me, it very much sounds like ‘real NOTA’ is required to fulfill this provision.

• ‘the will of the people shall be the basis of the authority of the government’ – the will of the people can only be expressed through their consent, if people cannot withhold their consent, then they cannot give their consent, therefore the will of the people has not been expressed and so the government has no basis for its authority.

•  ‘guaranteeing the free expression of the will of the electors’ – We are guaranteed ‘real NOTA’ as a valid option on the ballot.

To me the interpretation of ‘the will of the people/electors’ is the most critical element. What does ‘will’ mean?

From the Oxford dictionary the meaning of will relevant to us is: expressing desire, consent, or willingness.

It’s clear that consent is a vital component of will. How can any government that is based on the will of the electorate not have their consent? Once we can establish that consent cannot be given without ‘real NOTA’ the UK government is bound by the UDHR and ICCPR to provide it.

Let me clarify how consent is linked with ‘real NOTA’ i.e. if NOTA achieved a majority of valid votes the election must be held again.

In a democracy, regardless of who we vote for, we consent that the winner of that election will represent the whole of that electorate. However if we do not have the means to withhold consent, it is impossible to give consent.

How can consent be given if it cannot be withheld?

The only fair and practical way consent can be withheld is by having a NOTA option on the ballot that ensures the election is held again if it receives a majority of the valid votes cast. To ensure fairness, if consent can be established by ticking a box on a ballot, then withholding consent must also be established by a method equivalent to giving consent.

For example, if I look at the list of candidates on the ballot and I find that none of them are worthy of my vote, I currently have no fair means of expressing that opinion and having it count – so the winner of the election is representing me without my consent. In a democracy, this is a clear violation of my rights and of everyone who feels as I do. The only way the free expression of my will can be expressed is through the ‘real NOTA’ option.

In my view NOTA is not a refinement of the voting system, it is a pre-requisite to any fair and equitable voting system that allows the free expression of the will of the electorate.

More importantly its presence has the potential to improve the quality of our political representatives in UK politics, as its presence will have to be accounted for in all calculations by political parties and their candidates. Currently, politicians only have an incentive to be the least worst in an election – with a ‘real NOTA’ option present they must strive to be the best.

Is this not a critical objective if we are to progress?

Even worse, the lack of ‘real NOTA’ means that poor candidates can make the entry of good candidates difficult by turning politics into a cesspool within which mainly only the unscrupulous can survive.

If voters are given real power in the political process it encourages their engagement, not just in the voting process, but in all aspects of the political process. They have now become active participants in their governance rather than passive recipients of governance that is on offer to them on a particular day.

Rohin Vadera

Tagged: human rights, legality, NOTA, political parties, Progress