GUEST BLOG: Is NOTA a Legal Requirement?

In an update to his guest blog from last year, NOTA UK’s Rohin Vadera further explores the question:

Is a ‘None of the Above’ option on ballot papers a legal requirement?

In September 2013, the Indian Supreme Court (SC) ruled that electronic voting machines (EVMs) must include a ‘None of the Above’ (NOTA) option for the upcoming national election. Its presence was intended to provide the option for a voter to effectively spoil their vote in private, otherwise impossible given the way voters cast their vote through an EVM.

In this case the NOTA option allowed voters to come to the polling section to register their desire to abstain from the voting process. But it did not function as a true NOTA option, which is a mechanism to formally reject all candidates on offer and initiate a re-run election if need be.

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

What is interesting from the NOTA UK point of view is that the SC based its judgement on sections from the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), the latter of which India has ratified (as has the UK). The ICCPR in particular is a covenant that the UK is legally bound to follow and its terms cannot be overturned by an act of parliament, as I understand it.

Part of the SC judgement is laid out below:

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 a vote negatively defeats the very freedom of expression and the right ensured in Article 21 (of the UDHR) i.e., the right to liberty.

(Text highlighted by author)

The SC gave reasons why it felt that the NOTA option was an important part of the voting process:

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 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.

I certainly agree with the reasoning. However, for NOTA to have a substantive impact as described above it must be able to affect the results of an election in a formalised and robust manner. Politicians are used to widespread approbation, so a widely used symbolic NOTA option could be shrugged off, or used in some type of political game that results in no substantive positive changes.

A symbolic NOTA option provides little incentive for disillusioned voters to express their voice as there are no clear and unambiguous consequences to that choice. Uncertainty is the worst outcome of all and undermines the use of this type of NOTA, as disillusioned voters would likely steer clear of the voting process altogether, instead of choosing an ineffective NOTA option.

The SC has also made the common mistake of conflating NOTA with abstention, using it as a mechanism to ‘actively abstain’, rather than reject, in the hope that it will have a positive impact.

So what is the relevance to the UK situation?

Firstly the Indian experience demonstrates that documents like the UDHR and the ICCPR carry weight in determination of election law and secondly there is a good reason to believe that these documents have clauses that require a properly functioning NOTA option that allows voters to reject all candidates with formalised consequences.

Before going into the aforementioned documents, readers should remember that NOTA confers the ability to withhold one’s consent during an election process and thereby ensures that consent can also be validly given, thus making an election a democratic process where voters are the sovereign power. Without NOTA you cannot have an electoral democracy. It is as simple as that.

What I hope to demonstrate is that not only is it a democratic pre-requisite, it is also a legal requirement for any country that has agreed to abide by the UDHR, and especially the ICCPR.

UDHR Article 21.3 is relevant to NOTA, in my view:

21.3. 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.

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ICCPR Article 25(b) is also relevant:

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

(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.

(Text highlighted by author)

UDHR 21.3 is clear and unambiguous in its support for a bona fide NOTA option. If the ‘will of the people’ is the basis of a government’s authority, then that government must surely have obtained their consent first. And how can voters give consent unless there is a commensurate ability to withhold it?

This is of course assuming that the oft used phrase ‘will of the people’ actually means what it says rather than being a meaningless cliché, included for effect.

The ICCPR article 25(b) is a little more subtle, but once understood, equally compelling. Elections are supposed to guarantee ‘the free expression of the will of the electors’. How can that be guaranteed unless their consent has been sought and obtained?

For those in any doubt, if we examine the dictionary meaning of ‘will’, in this context it means: expressing desire, consent, or willingness.

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 formally given (by voting) without a bona fide NOTA option facilitating the formal withholding of it, the UK is, arguably, legally bound to provide it.

The ICCPR is especially important in this regard as the UK agency responsible for elections could theoretically be sued for breach of covenant if they failed to carry out elections as set out by the terms of the ICCPR and could in turn be liable for monetary recompense to the aggrieved parties i.e. all UK citizens. The ramifications are enormous.

I don’t recommend that anyone rush off to sue the UK government just yet (unless you allow me to join in!), but it is an interesting avenue to pursue should other ways of bringing this important reform into the election process not come to fruition.

Rohin Vadera

16/04/15

The full text of the UDHR and ICCPR can be found here:

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

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3 thoughts on “GUEST BLOG: Is NOTA a Legal Requirement?

  1. […] to argue against without arguing against democracy itself, once properly understood (see here and here for […]

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  2. […] to argue against without arguing against democracy itself, once properly understood (see here and here for […]

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  3. […] inevitable. There is also quite probably a legal case to be made for inclusion of NOTA (see here: https://nota-uk.org/…/guest-blog-is-nota-a-legal-requireme…/ […]

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