COVID-19 has changed virtually everything. Looking ahead, questions have been raised about the election for members of the Scottish Parliament scheduled for 6 May 2021. When asked about the issue at a daily COVID-19 briefing on 29 April 2020, First Minister Nicola Sturgeon MSP said:
“I don’t have space in my head to think about politics or elections” but went on to say that the business of democracy should continue wherever possible, even if arrangements need to change.
Speaking in the stage 3 debate on the Scottish Elections (Reform) Bill, Graeme Dey MSP, Minister for Parliamentary Business and Veterans stated that:
“the pandemic has also raised questions, at least in some quarters, about the arrangements for the 2021 Scottish Parliament election. It is too early to make any decisions about next year…However, I can tell the chamber that we are carefully monitoring the situation and beginning to explore options for the delivery of the election with returning officers and electoral registration officers through the Electoral Management Board for Scotland.”
This blog looks at the question asked of the First Minister – namely the possible impact of COVID-19 on the Scottish general election scheduled for 2021. In particular, the blog seeks to address questions around:
- how the date of an ordinary Scottish general election can be moved
- what the evidence on elections has shown to date in terms of COVID-19
- what challenges electoral administrators are likely to already be planning to have to overcome in order to deliver a Scottish general election in the time of a pandemic.
The question of how the date of a Scottish general election could be moved is addressed by Sarah Atherton, SPICe’s senior researcher for Parliament and Constitution.
The remainder of the blog is the work and views of Dr Alistair Clark, Reader in Politics, at Newcastle University. Dr Clark is a specialist in the field of elections and referendums, having written extensively on the integrity of the democratic process and he is also accredited by the Electoral Commission as an electoral observer. As with all guest blogs, what follows are the views of the author, not those of SPICe or indeed the Scottish Parliament.
How can the date of a general election be moved?
The Scotland Act 1998 provides the schedule for ordinary general elections to the Scottish Parliament. Section 2(2) provides that ordinary general elections:
“shall be held on the first Thursday in May in the fourth calendar year following that in which the previous ordinary general election was held”.
The Scottish (Elections) Reform Bill, passed by the Parliament on 3 June 2020, amends the Scotland Act 1998 to provide that general elections to the Scottish Parliament be held every fifth year for future elections (anticipated to mean those after 2021).
In order to change the date of a general election to the Scottish Parliament (subject to the powers of the Presiding Officer to vary the date – more information on that further along on this blog) primary legislation is required.
The Scotland Act 2016 devolved competence over Scottish Parliament elections to the Scottish Parliament. As such, the Scottish Parliament is able to legislate to amend the dates of such elections (subject to some restrictions about the combining of polls).
Has the date of a general election been moved before?
Legislation has already been used to provide for a change to the date of a Scottish general election. On 25 February 2016, the Parliament passed the Scottish Elections (Dates) Act 2016. This Act provides for a change to the date of the Scottish Parliament general election that would otherwise be held on 7 May 2020 to instead be held on 6 May 2021. The Act was passed so that the general election to the Scottish Parliament did not coincide with the then scheduled general election to the UK Parliament. The Act also changed the date of Scottish local government elections due to be held on 6 May 2021 to 5 May 2022. This change was to ensure that Scottish local government elections did not coincide with the scheduled general election to the Scottish Parliament.
Given that at the time the Scottish Elections (Dates) Bill was introduced, the Scotland Act 2016 had not been passed, it was agreed by the Scottish and UK Governments (on the request of the Presiding Officer) that power to address the issue be transferred to the Scottish Parliament ahead of the completion of the Scotland Bill’s passage through the UK Parliament.
Is legislation the only way to change the date of a general election?
Under section 2(5) of the Scotland Act 1998 the Presiding Officer of the Scottish Parliament has the power to propose a new date for the poll at a Scottish Parliament election which is not more than one month before or after the first Thursday in May. This is determined by Royal Proclamation further to a proposal from the Presiding Officer. At present, this power is exercisable only if the Parliament has not yet been dissolved.
However, section 3 of the Scottish Elections (Reform) Bill, which is awaiting Royal Assent, provides that the Presiding Officer is able to exercise existing powers under the Scotland Act 1998 to propose a new date for a general election to the Scottish Parliament if the Parliament is already dissolved.
These powers exist in case of a requirement to change the date of the election at short notice.
When does legislation for Scottish Parliament general elections need to be in place?
The administrative challenge of running an election is significant. It is important, therefore, that electoral administrators have clarity on the rules for any election in good time to run the election as smoothly as possible.
In 2007, the Scottish Parliament and Scottish Local Government elections were held on the same day. There were significant administrative issues at this poll leading to the suspension of several counts and the rejection of more than 140,000 ballot papers.
The Electoral Commission established the Scottish Elections Review after the poll to report independently on the administration of the elections. The report which came from the Scottish Elections Review is known as the Gould report (named after Ron Gould, the Chair of the review).
One of the recommendations to come from the report is known as the Gould principle – that is that any legislation required for elections should be in place six months before the election (and it follows that no new electoral legislation should be introduced in this six month period).
The pre-election period (sometimes still referred to as ‘purdah’) is the period prior to an election during which the activity of political parties is regulated and restrictions are placed on government in terms of publications and announcements. It is expected that during the pre-election period Ministers will carry out only essential government business and not make any major policy decisions or announcements.
The Scottish Government remains responsible for governing during the pre-election period and the First Minister and other Ministers remain in office until a new First Minister and Ministers are appointed. The First Minister is appointed by Her Majesty The Queen on the nomination of the Parliament. Ministers are appointed by the First Minister with the approval of Her Majesty The Queen following the Parliament’s agreement.
At dissolution, which is provided for by section 2(3) of the Scotland Act 1998, MSPs cease to be members of the Parliament, this means that throughout the pre-election period there are no MSPs – only candidates for election.
COVID-19 and elections by Dr Alistair Clark
As with all guest blogs, what follows are the views of the author, not those of SPICe or indeed the Scottish Parliament.
Exactly how COVID-19 will affect scheduled elections is unclear, but it is almost certain to have an influence on how or indeed whether people go to the polls on 6 May next year.
What is also unclear is what impact elections may have upon the spread of COVID-19. Concerns that elections would increase the spread of coronavirus led to postponement of council byelections in Scotland and the English local elections in May 2020. Research into elections in Wisconsin in April 2020 gave mixed results about the increase in transmission, although one study linked a rise in transmission to in-person polling places.
Scottish electoral administrators, the Electoral Management Board and Scottish Government are currently grappling with this uncertainty, examining the practical implications in line with potentially changing government guidelines.
What may need to be adapted ahead of an election?
In the pre-election period, nomination processes and electoral registration canvasses are among things that will need to adapt. For example, nomination processes may move online, and any absolutely necessary meetings with candidates be held individually with distancing, rather than as a group as previously. As with other services, Electoral Registration Officers and Returning Officers and their teams are having to adapt to working differently whether that be from home; with childcare responsibilities or with reduced capacity.
During the election, printing ballot papers, and ensuring they are sent out in a timely fashion will depend on printers and the postal service not experiencing COVID-19 outbreaks and disruptions. Election campaigns will likely look very different with social distancing requirements and, if the status quo is maintained, a drive for people to stay at home wherever possible.
The challenges for polling places and polling staff
It is worth considering polling stations/places in some detail. Electoral Commission data shows that there were 2,689 polling places at the 2016 Scottish Parliament election, most of which would have had two or three polling stations within them.
Glasgow had 201 polling places and just under 500 polling stations, while Edinburgh had 147 and around 300. A predominantly rural constituency like Argyll and Bute had 117 polling places, although more widely dispersed.
Many of the buildings traditionally used as polling places will raise challenges around voting in a pandemic with concerns about transmission and the requirement for social distancing. Some potentially may be poorly ventilated or have limited space. Lots of buildings are church halls or schools. There is a question over whether they will be able to be used, and what the public health implications of doing so may be.
Polling places also need to be staffed. Each polling station will have at least two people working at it. Research I have carried out (with Professor Toby James, of the University of East Anglia) suggests that many of these polling station staff will be in potentially higher risk groups – polling place staff would tend to fall into the older age group. The age profile from 2016 is set out below. The average age of polling station workers in four councils in the 2016 Scottish parliament election was 54.8, represented by the orange line in the chart below with around 39% over 60, and the oldest being 84. Thirty four percent were retired and 60.6% of polling station workers in 2016 were women.
Polling station workers are civic-minded volunteers. They work a 16-hour day, often for a little extra money. They interact with every voter that requests a ballot paper, as well as the other staff in their polling place. There were already difficulties in recruiting enough staff. The danger is that under COVID-19, many will decide that the health risk is not worth it. If large numbers fail to volunteer, this would make the elections very difficult to deliver. Staff having to wear PPE may mean two shifts, increasing the recruitment difficulties. In places, consideration is being given to staffing the elections with only council staff. This would have implications for the delivery of other council services.
On election day, polling stations will have to take precautions. Social distancing will restrict the number of voters that can be safely dealt with at any one time. Voting will therefore take longer, particularly at peak periods and with queues developing potentially even at quieter periods. There will be a need for a sufficient supply of hand sanitisers in each polling station. Polling booths and ballot boxes may need sanitised after each voter has used them. Extra staff may be required if so. Polling station staff and voters will likely be encouraged to wear masks. Whether this will be obligatory, whether voters will have to take them off to confirm their name and address, and what polling station staff might do if voters are not wearing a mask will depend on either changes to the law (like we’ve recently seen to introduce the wearing of face coverings on public transport) and/or guidance.
In the UK tradition is to vote by pencil because ink can smudge, dry out or spill over a ballot paper making a vote invalid. In recent years, however, there has been a movement criticising pencils in polling booths (with some conspiracy theorists claiming that pencils mean that votes can be changed using #UsePens on social media). In 2021, voters may actually have to take their own instead of using a shared pencil, or single use pens/pencils may have to be provided. In a recent Presidential Primary in Providence, Rhode Island, voters were given single-use styluses/pens to cast their vote with.
A rise in postal voting?
The expectation is that there will be an increased number of requests for postal votes compared to previous elections. Postal vote applications take time to process and tend to be received close to the deadline. These have been rising steadily, 18% at the 2016 Scottish Parliament election and the 2019 UK general election. Of those postal votes issued, 76.6% were returned in 2016, while 83.1% were returned in 2019.
Around 3% of postal votes were rejected at the 2016 Scottish Parliament election because they failed to meet the security requirements (in place to ensure the integrity of the poll) prior to being opened. These can be issues such as mismatches with identifiers and failures to provide complete information. This could be a vital factor in an election with a substantially increased number of postal votes.
Postal voting also raises other challenges, like getting replacement ballot papers out in time if needed and ensuring that individuals are clear on when they must send back their ballot paper for it to be counted. The Electoral Commission’s report of the 2016 Scottish Parliament election states that:
“ROs [Returning Officers] also reported that they received 1,538 postal votes after the close of poll, which averaged 21 across the constituencies. It is regrettable that despite the use of the postal votes sweep service provided by Royal Mail by all of Scotland’s ROs postal voters have returned votes too late or placed the postal vote pack in the post box after the sweep.”
A rise in postal voting would help with social distancing in polling stations. It would not however reduce the need for polling stations, which would still have to be provided unless there was a move to an all-postal vote election. This is something which the Electoral Commission has previously warned against as it is best for voters to have a choice in the manner by which they vote.
“Our position, following evaluation of the 2004 pilot schemes, is that all-postal voting does not offer an appropriate level of choice.”The Electoral Commission Delivering Democracy? The future of postal voting, 2004
There can also be concerns around, for example, the secrecy of the ballot if people are made to use postal votes. A full postal election seems unlikely. If this were to be the way ahead it would need urgent legislation to be brought forward without delay to be in place six months ahead of the election (if adhering to the Gould principle) and an uplift in resources to adequately provide for it if it were to be implemented successfully. Neither seem to be on the Scottish Government’s agenda.
Increased postal voting is something that electoral registration officers need to start planning for now. This might include thinking about a public information campaign around postal voting starting well in advance and planning social distancing at postal vote openings.
A large increase of postal vote applications close to the deadline could see the postal vote system close to collapse. Extended deadlines for postal voter registration and resourcing to assist with such a project might need to be considered and legislated for, with potential knock on effects to other aspects of the electoral timetable.
It is possible that some voters will become symptomatic and have to isolate after postal voting deadlines have closed. It is important that they don’t lose the opportunity to vote. Some countries have gone so far as to provide medically supported polling locations with special PPE for the symptomatic and staff. This might be unlikely in Scotland, but there is certainly likely to be pressure on emergency proxy voting.
There is also a risk of infection in the administrative teams delivering the election. If a key administrator such as a depute returning officer or electoral registration officer were infected, and their team told to self-isolate, then the election could not be delivered in their area.
Many of the issues highlighted with polling places also apply to the post-election count. These have traditionally been overnight at a central location, with results generally known by lunchtime next day. Large numbers of people are brought together in a big hall to sit at tables verifying and counting ballots. Edinburgh employed around 1,200 count staff in 2016 for example and space is at a premium
At a minimum, the need for social distancing, cleaning and sanitising surfaces is likely to slow this process down considerably. Politicians, the media and public will need to accept that results may not be known until later than normal, perhaps days afterwards. This message needs to start to be communicated now to avoid the inevitable complaints post-election. As with polling stations, the potential difficulties in recruiting enough count staff under COVID-19 circumstances should be evident.
All of this will come at a cost. There will be a behind-the-scenes discussion between councils, the Electoral Management Board and the Scottish Government about who will fund any necessary COVID-19 mitigation measures. There are currently 12 council by-elections outstanding in Scotland according to the Electoral Management Board, with the first of these scheduled for October. While these will not experience the same turnout levels, or recruitment issues, they will provide vital practical experience and lessons for electoral administrators in the run up to the anticipated general election in May 2021.
Dr Alistair Clark, Reader in Politics, Newcastle University
Sarah Atherton, SPICe research