Supreme Court rules NSW elections void after IT glitch

A court has ordered three New South Wales council elections to be retaken after the state’s electronic voting system failed last December.

The elections were the first at the council level to use the state’s electronic voting system iVote, after being used for the 2011, 2015, and 2019 state elections.

However, on 4 December, the electoral commission revealed that the iVote system had become overloaded due to a high volume of requests, and that a number of voters were unable to gain access to the system and were not given an approved iVote number.

On Thursday, New South Wales supreme court justice Robert Beech-Jones declared elections in Kempsey, Singleton, and the Shellharbour Ward A local government area void, following an application from the Electoral Commission to have the results thrown out.

The failure of the iVote system meant that each election was not conducted in accordance with general regulation, declared Beech-Jones. He added that although the number of voters disenfranchised by iVote system failures was small, the use of proportional representation in local government elections meant denied votes had a real potential to affect the election of at least once councillor in each of the three elections.

The judge said that the most difficult issue is whether the failure of the iVote system meant that the election of all the councillors in the three elections must be voided or only the election of those councillors whose election was directly affected by the missing votes.

He said that as the system of elections for the three councils is proportional representation, it is necessary to declare all of the councillors’ elections void.

“At the outset it is necessary to emphasise that nothing in these proceedings involves any alleged failing much less misconduct on the part of the councils or any of the candidates, including those who were elected,” said Beech-Jones. “To the contrary, the councils and the candidates, including the elected councillors, are completely innocent of any of the conduct said to have caused the elections to miscarry. They will unfairly bear the consequences of the failure of the iVote system.”

Beech-Jones added that he has already accepted that a failure of the iVote system resulting in a new election is likely to cause a loss of faith in the electoral process.

A review of the incident published in December found that the election results in the three areas had been impacted by the glitch. The court heard a preliminary assessment of the consequences of the failure of the iVote system, which ascertained the potential number of additional voters who registered to use iVote but did not receive an iVote number in time for the election.

The total number of those voters was between 0.11% and 1.69% of the total number of electors who cast a vote in each local government election. This works out to be 134 for Kempsey, 122 for Shellharbour Ward A, and 139 for Singleton.

Fresh elections must be held within three months of the court making its final order, which has been adjourned until 5 April 2022.

“The electoral commissioner regrets the inconvenience caused to these councils and their councillors, but he welcomes the resolution of the matter and will now commence preparations for fresh elections,” the Electoral Commission said in a statement.

The commissioner will also give careful consideration to requests from candidates for the reimbursement of their electoral expenditure in relation to the voided elections.

This comes after the Electoral Commission confirmed yesterday that it will not implement the iVote technology at the 2023 state election. John Schmidt, the electoral commissioner, revealed that the current version of the software will be phased out between 2022 and 2023.

Since there isn’t enough time to configure and test a new version, iVote will not be used at any elections between 1 July 2022 and 25 March 2023.