AEC urges voice voters to write ‘yes’ or ‘no’ and says crosses may not be counted

Voters in the upcoming voice to parliament referendum are being urged to write ‘yes’ or ‘no’ on referendum ballot papers – and being warned that if they use a cross, their vote may not be counted.

The well-established and longstanding rule which will mean ticks are likely allowed but votes that use crosses are likely excluded has prompted criticism from opposition leader Peter Dutton, former prime minister Tony Abbott and the no campaign, which claims the requirement will “stack the deck” against them.

The rule has been on the books, without controversy, for 30 years and six referendum questions, and when asked about ticks and crosses on Thursday, an Australian Electoral Commission spokesperson simply said: “Please don’t use them.”

“The formal voting instructions for the referendum are to clearly write yes or no, in full, in English … We expect the vast, vast majority of voters to follow those instructions,” the AEC spokesperson said.

The latest claims from the no campaign stem from an interview commissioner Tom Rogers gave to Sky News on Wednesday. The electoral commissioner explicitly said multiple times that voters should write ‘yes’ or ‘no’ on the ballot, adding he was “nervous” of even talking about other options beyond that. He also said well-established rules, called “savings provisions”, allow AEC staff to count votes which don’t strictly follow such instructions.

“It is likely that a ‘y’ or an ‘n’ would be counted under the savings provisions. But I get nervous even talking about that because then people hear mixed messages. It’s just important to write either ‘yes’ or ‘no’ on that ballot paper,” Rogers said.

“It is likely that a tick will be accepted as a formal vote for yes but a cross will not be accepted as a formal vote.”

The claims were leapt upon by Fair Australia, the referendum no campaign from conservative group Advance, as well as Dutton and Abbott. Fair Australia tweeted: “Looks like just another attempt to stack the deck against ‘no’ voting Australians.”

Abbott claimed on 2GB that “there’s a suspicion that officialdom is trying to make it easier for one side … this is the worry all along that there is a lot of official bias in this whole referendum process.”

Dutton, also speaking on 2GB, called it “completely outrageous” and claimed the situation “gives a very, very strong advantage to the ‘yes’ case”. The opposition leader said he would ask the government to draft legislation to change the rule.

The Coalition opposition did not propose amending this rule during debate on the referendum machinery act earlier this year, and supported the government’s legislation. A government source called Dutton’s claims “fantasy”, noting the same voting rules applied at federal elections.

The AEC says this rule has been in place for 30 years, since 1988, and that the rules about savings provisions had been in place for six referendums since then. The AEC also said that in the 1999 referendum, only 0.86% of votes were classed as informal, and only a portion of those related to ticks and crosses on the ballot.

The ballot paper given to Australians will clearly tell voters “write yes or no”, on two separate occasions.

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“The formality rules for referendums has been the same for a long period of time … Savings provisions exist for federal elections as well,” the AEC said.

“The AEC does not have any discretion to simply ignore savings provisions. They are a longstanding legislative requirement. The AEC’s accepted legal advice regarding the application of savings provisions to ‘ticks’ and ‘crosses’ since 1988 [over 30 years and multiple referendums] remains the same. This is not new.”

The spokesperson said that other responses on the ballot paper were not guaranteed to be counted, including ticks and crosses.

“The issue with a cross is that on many forms people in Australia use in daily life, and in some other languages, it represents a ‘check mark’ indicating yes – it therefore leaves it open to interpretation or challenge by a scrutineer,” they said.

“A ‘tick’ would also be open to interpretation and may not count depending on just how clear that mark is on the ballot paper. The same issues exist for just the letter ‘y’ or ‘n’ – if the handwriting makes it unclear it could risk an informal vote.

“It’s also important to note that the counting process is highly transparent – scrutineers from both sides of the debate will be able to be present throughout the count to observe the process.”