Campaigning for Real Electoral Reform, Now
NOTA UK recently submitted written evidence to the Political and Constitutional Reform Committee as part of their inquiries into voter engagement. It has been accepted into the public record and published on their website. You can view it here:
http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/7985
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:
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:
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
On 20th March 2014, our NOTA campaign went into overdrive and found itself very much at home in the corridors of power…
David Babbs from 38 Degrees appeared before the Parliamentary Committee on Voter Engagement to give evidence from a recent survey of their members. NOTA featured heavily in the responses and so naturally featured heavily in his presentation also. Watch the video here, NOTA comes into its own around 20 mins in.
According to RT, The Committee for Constitutional Legislation of the Russian lower house has recommended MP’s support a bill calling for the reinstating of an official ‘none of the above option’ on ballots for municipal and regional elections.
This NOTA option was first introduced at elections in Russia in 1991. It was then scrapped in 2006 for ‘financial reasons’. Now, they are considering re-instating it.
This is a very interesting development. Clearly, Russia under Vladimir Putin is not known for its championing of human rights and democracy. And it could of course be argued that, in what is essentially a dictatorship, allowing such a pro-democracy option to exist amounts to nothing more than a PR gesture, as there are certainly more ways than one to discourage dissent and influence voters at election time in such a country.
That said, what is striking about this move is that the form of NOTA in question, whilst falling short of applying across the board nationally as we are campaigning for in the UK, is very much closer to the kind of NOTA with teeth that we are calling for than the faux-NOTA that exists elsewhere (more on the difference here).
This is, to our knowledge, the first and only time that a country has implemented, ditched and then proposed to reinstate an official NOTA option with real ramifications for the election result if it gets the most votes. A step in the right direction and definitely one to watch in our view!
More info on the NOTA with teeth that we are calling for in the UK can be found here.
A common argument made against having a NOTA option on the ballot paper is the ‘but NOTA doesn’t achieve anything’ argument.
I never understood the logic of that, so tended to dismiss such criticisms as baseless, founded on unexamined assumptions and therefore not worthy of comment.
Upon investigation, however, I discovered that there is a perfectly logical and valid reason why people believe this: their perception of NOTA is based on how they believe it has been implemented elsewhere and the impact it has had.
A perfectly rational way to assess an electoral reform’s effectiveness, you might think – until you realise that, in all cases, the form of NOTA in question bares no resemblance to the bonafide NOTA option with teeth that we are campaigning for.
This excellent article lists 12 countries where a form of NOTA exists, the most recent addition being India:
http://www.care2.com/causes/12-countries-where-citizens-can-vote-none-of-the-above.html
In all cases, NOTA is a token gesture with no ramifications whatsoever. If NOTA wins in any of these countries, literally nothing happens. The second placed live candidate takes office anyway.
What use is that? If there are no consequences when the majority reject all that is on offer, why bother making use of the option in the first place? Having such a token NOTA option does nothing for voter turnout as it offers no more incentive to the disenfranchised to vote than if it were not there at all. It therefore doesn’t even offer an effective way of measuring voter discontent – the bare minimum!
True NOTA, clearly, must have ramifications for the election result if it wins, otherwise it is meaningless. Our proposal is for just such a thing and is covered in detail here: https://nota-uk.org/2013/11/16/nota-for-real-logistics-ramifications/
So – the next time someone trots out the ‘NOTA won’t achieve anything argument’, politely remind them that true NOTA has never been tried anywhere and point them our way.
Due to perceived schisms, the campaign to get an official None Of The Above option on the UK ballot paper is often mocked for its apparent similarity to the ‘People’s Front of Judea’ from Monty Python’s ‘Life of Brian’…
Fortunately, amusing as it is to think of it that way, this is far from accurate.
That joke was aimed at the political ‘left’ in general who are notorious for fighting amongst themselves whilst supposedly fighting for the same things.
But that’s really not what is happening with the NOTA movement.
What we have is this:
1: A grass roots campaign group focused on making the solid case for NOTA with a view to mobilising massive public support for it and eventually getting it on the ballot paper as an inevitable government concession (that’s us, NOTA UK est. 2010)
2: An ambitious political party attempting to get itself elected on a NOTA platform (Notavote – a potentially distracting contradiction in terms, in our view) and a second allegedly far right group trying to hijack the NOTA campaign as a way of furthering its insipid aims via this facebook group: “NONE OF THE ABOVE CAMPAIGN (VOTING)”
That’s not like-minded people fighting amongst themselves. That’s a group of people who understand and are actively campaigning for an achievable goal and two groups claiming an association with that goal to further their own agendas, some well meaning, others not so much.
There is a difference.
There is only one bonafide NOTA campaign – and it is this one. Tell your friends!
“SPLITTERS!!!” *
—————–
* – humorous aside
Jeremy Paxman calls for None Of The Above on BBC primetime!
Great social leaps forward generally occur in spite of government – not because of it.
Progressive social changes like votes for women and the birth of the NHS were borne of people coming together and fighting for a cause. Much as political parties of all stripes love to take credit for such things, the truth is that such leaps forward invariably occur in the form of inevitable government concessions that become necessary in order to keep the peace. So could it be with NOTA.
NOTA is a democratic pre-requisite. When you vote in an election, you effectively give consent to being represented by whoever wins. But consent is immaterial if it is not possible to withhold consent. NOTA represents the democratic right to withhold consent and exercise ones right to vote simultaneously.
When understood this way, as a democratic necessity, it is impossible to argue against NOTA without appearing anti-democratic. Even if they are, the political class can never be seen to be that. Ergo, with enough vocal support behind it, NOTA ought to one day be achievable as an inevitable government concession.
Getting the necessary level of public support is also possible, in our view, because NOTA is straightforward, self-explanatory and in tune with the public mood. By contrast, debates about the merits and pitfalls of various voting systems and more complex reforms like RON (re-open nominations), for example, are not. They appear exclusive, dull, and inaccessible to many.
NOTA remains the achievable and potentially unifying electoral reform from which all other reform could flow.
It is a common misconception that it is already possible to cast a vote for None of the Above in the UK by either not voting or spoiling the ballot paper.
Abstaining is simply not participating and can be dismissed as voter apathy with no further analysis.
Spoiling the ballot is not the same either as all spoilt ballots are lumped in with those spoilt in error. Any spoilt vote count is therefore meaningless and does not provide a measure of voter discontent.
An official NOTA option, by contrast, would.
Voting NOTA, if we could, would be a way of not just officially registering a vote of no confidence in all candidates, parties and policies put forward but also a way of demanding better choices.
Another common misconception is that if only more people would bother to vote, we’d get better parties, candidates and policies in government.
Unfortunately, when you really understand how our voting system works, it becomes clear that this is not the case.
The ‘First Past The Post’ voting system, combined with deeply entrenched voting habits in hundreds of traditionally safe Labour and Conservative seats, ensures that our electoral system is effectively a two horse race with only one or other of the big two able to form a government, either with an outright majority or in coalition with smaller parties who then have little or no influence over policy in practice.
In such a system, the third biggest party – currently the Liberal Democrats – exist solely to shoehorn one of the big two into power. For this reason, new parties and independents stand no chance of forming a government and very little chance of having any real influence over policy in our current system. Even with the best of intentions, they essentially just split the vote and facilitate the continuation of a two party system. This would be undemocratic even if those two parties were diametrically opposed – but they aren’t. Beyond the electioneering and hype, they are both parties of big business and little else, answerable to the same corporate and financial elites.
An official NOTA option would, by its very existence, level this playing field considerably. More discussion of the how and why can be found here:
https://nota-uk.org/2013/11/16/nota-for-real-logistics-ramifications/
None of the Above UK 