iVote, the 2021 NSW Government Elections and the Future of Internet Voting

Narelle Miragliotta and Sarah Murray

01.06.2022

In January 2022, the NSW Electoral Commission (NSWEC) petitioned the NSW Supreme Court to void the outcome in three local council elections held on December 4 the previous year. The basis for the petition was not one of the more familiar triggers. As the counsel for one of the defendants in the case observed: ‘This is not a case where there was rampant widespread voter fraud, or lost ballot boxes, or ballot stuffing. There were no riots [or] outbreak of warfare that suspended an election’. The problem in this instance was a system capacity issue. The basis of the petition launched by the NSWEC was a ‘defect or irregularity’ in the electronic iVote system.

Background 

Electronic voting, in the form of the iVote platform, has been available at NSW state elections since 2011, albeit access to the channel has always been restricted to specific categories of electors.   

In late 2020, and in the wake of the suspension of the planned September 2020 local government elections owing to the COVID pandemic, the Minister for Local Government announced that iVote would be authorised as an additional voting channel.  This decision required amendment to the Local Government Act 1993 (NSW) (LG Act) and the Local Government (General) Regulation 2005 (NSW) (now the Local Government (General) Regulation 2021 (NSW)).  Moreover, it was further announced that eligibility to use iVote would be extended to any voter who would be outside of their council area on election day.  

The confluence of the pandemic, the requirement for compulsory voting and relaxed voter eligibility to use iVote led to a high volume of traffic on the platform’s server. Upwards of 671,657 ballots were cast using iVote, a number far greater than the 234,401 votes cast via iVote at the 2019 state election, and exceeding by more than a 100,000 votes what the NSWEC had actually planned and tested for.  Under the strain of this high demand, the server was impacted by two disruptions on polling day. The result, as explained by the NSWEC, was that ‘electors were not issued with the necessary security credential before the close of voting on election day, which is a prerequisite to accessing the voting component of the system.’ 

What the NSWEC analysis found 

Late on polling day the NSWEC issued a media release stating that it was ‘aware that some iVote users were unable to gain access to the system to vote...’ and offered assurances that those electors who were unable to cast their vote would be exempt from paying a penalty.  

In that same press release, the NSWEC also announced their intention to investigate the matter in order to ascertain the extent to which the system outage may have impacted the outcome. Their modelling revealed that of the 122 council elections, three council elections were likely affected: Kempsey; Singleton and Shellharbour Ward A.  

The NSWEC determined that the number of impacted ballots was likely small: 34 in Kempsey, 55 in Singleton and 54 in Shellharbour Ward A. However, the NSWEC concluded that the probability or the ‘observed frequency of alternative outcome’  arising from these different parcels of ballots in each of the wards was high:  61% in Kempsey; 43% in Singleton and 7% in Shellharbour Ward A. The modelling further found that there was a 1% probability of a different outcome in Hay, Kiama and the Rosehill ward of Parramatta had the outage not occurred.   

The NSWEC’s analysis has been described by Vanessa Teague, an adjunct Associate Professor in the College of Engineering and Computer Science at ANU, as highly ‘conservative’.  Nevertheless, following the publication of its findings, the NSWEC announced that it would apply to the Supreme Court for a declaration relating to the validity of the elections in Kempsey, Singleton and Shellharbour Ward A, ‘[t]o address the risk of ongoing ambiguity about the materiality of the iVote issue for these elections, as well as to support the integrity of the electoral system more generally’.  

Court ruling 

On 17 March, Beech-Jones CJ at CL handed down his decision in the judicial review proceedings in ​​NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282. His Honour found that the failure of the iVote system on election day resulted in each election not being held in compliance with the LG Act.  

While acknowledging that the number of voters disenfranchised was ‘small’ and that not all of these voters may have ‘cast formal votes’, his Honour found that the errors were ‘material to the outcome of the election[s]’ ([82] and [84]). His Honour, drawing on the High Court authorities of Johnston (2014) and Re Wood (1988), held that ‘the system of proportional representation utilised in local government elections is such that the votes that were denied to those voters had the real potential to affect the election of at least one Councillor in each of the three subject elections’ ([6]). The result of this was that the elections across the three Councils were voided. 

His Honour was also disinclined to exercise the Court’s discretion to refrain from voiding the elections on the basis of the costs of re-running the elections; the time, costs and personal impacts associated with additional election campaigns; or a potential decline in public confidence in elections.  While acknowledging the submissions made in this regard, the priority was to ‘secure for the electorate a Council properly elected in accordance with the [LG Act]’ ([111]). 

How did proportional representation cut across this technological snafu? 

One of the complexities of proportional representation is its treatment of the surplus votes, specifically the unused portion of a vote, when a candidate is elected with more votes than is required. Under these conditions, the surplus votes are transferred to un-elected candidates until all vacancies are filled. The unused proportion of these votes are transferred at a reduced value, in recognition of the fact that some of that vote has contributed to the election of one or more winning candidates.

Both the timing and the fraction of the unused votes that are transferred can impact the outcome. The result is that it is unsafe to void the election of only one candidate because of the complex transfers that impact the order in which the winners are elected.

Implications  

The proceedings were stood over and on 5 April (NSW Electoral Commissioner v Kempsey Shire Council (No 3) [2022] NSWSC 409), Beech-Jones CJ at CL made orders declaring the three elections void with effect on 3 May. The ruling means that the elections will be re-run within 3 months from this effective date, with the date to take into account the timing of the federal election and other Council requirements.  

However, the voiding of any election, while sometimes necessary, generates an array of costs. It causes inconvenience to voters, and it can have an indirect effect on the outcome of the fresh election owing to the tendency for depressed turnout when an election is held outside of the usual scheduled election period.  There is a financial impost, from the legal expenses associated with presenting the matter before the courts, to the costs of rescheduling an election.  

There are also consequences for the Councillors previously declared elected. In this case, 22 Councillors were enjoined in the legal action, even though the NSWEC were at pains to point out that the Councillors were not the subject of the proceedings or accused of any wrong-doing. Some of the defendants complained that the legal proceedings caused them reputational damage as well as financial harm, while others indicated that they might not be in a position to re-contest the election. At the 5 April hearing, the  NSWEC agreed to pay the legal costs of the affected Councils on an indemnity basis (in part responding to the cost of running the voided December elections) and the legal costs of the Councillors on an ordinary basis. Similarly, affected candidates may apply for an ‘act of grace’ payment in relation to electoral expenses incurred. 

The failure of the iVote platform was not without warning. At the November state budget estimates, the New South Wales Electoral Commissioner, John Schmidt, expressed concern about ‘piecemeal funding’ received by his agency to upgrade the iVote platform. While some independent experts have long expressed concerns about the integrity of the iVote platform, a review commissioned by the NSWEC prior to the local government elections also found that there was a risk of a malfunction occurring because there had been no major new investment in the platform since 2019.   

Future of Internet Voting 

The NSWEC has since announced that it will suspend the use of iVote for the 2023 state election and undertake a review of the use of internet voting going forward. 

While the NSWEC intends to work with affected stakeholders, the decision comes at a cost for those voters who have mobility or other challenges. Vision Australia, for example, has expressed concern that this decision undermines the rights of blind and low vision voters to cast their vote in secret, without having to rely on a third party. 

Beyond the importance of access to such a platform for some categories of voters, the pandemic and other crises have underlined the importance of investment in remote modes of voting. And the high numbers of COVID positive voters in the week of the recent federal election only brought this home. The more established ‘remote’ channels, such as postal voting and telephone voting, have decided deficits. The first is slow and unreliable and dependent on third party operators, while the latter is too cumbersome to be used at scale.  

The challenge is how to make voting more accessible while acknowledging the technological/security, public trust and existential concerns that new voting technologies inevitably elicit. In this vein, the second interim report of the Commonwealth Joint Standing Committee on Electoral Affairs Report into the 2013 election found ‘that there can be no widespread introduction of electronic voting in the near term without massive costs and unacceptable security risks’. 

There were several channels available to voters at the 2022 federal election, but internet voting was not one of them. Forms of electronic voting exist in some states and territories but generally for only particular classes of voters. Without a significant and sustained investment into secure, reliable, and robust internet platforms this is likely to remain the case.   

Retaining the public’s confidence in the integrity and reliability of Australia’s democratic processes is crucial. However, this does not obviate the need to stay abreast of innovative voting technologies.  As the NSWEC observes ‘innovation in election delivery’ is essential as is the need ‘to maintain trust in our democratic process by enriching citizen engagement with elections through technology’. The costs of electoral modernisation must be balanced against the costs of electoral stagnation. 

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Narelle Miragliotta is a senior lecturer in the department of Politics and International Relations at Monash University.

Sarah Murray is a Professor at the University of Western Australia Law School.

Suggested citation: Narelle Miragliotta and Sarah Murray, ‘iVote, the 2021 NSW Government Elections and the Future of Internet Voting’ on AUSPUBLAW (01 June 2022) <https://www.auspublaw.org/blog/2022/06/ivote-the-2021-nsw-government-elections-and-the-future-of-internet-voting>