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Judging Democracy

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Florida 2000

For those of us who had only ever heard the term "Chad" as applicable to a country in Africa, the United States presidential election of 2000 came as something of a surprise. That was when there were arguments over the "chads" punchholed out of voter cards, which in broad terms meant that the judicial decision as to how those were to be assessed determined the outcome of the election. This was because the Democrats challenged the decision in Florida, where a relatively small number of votes would decide which way the State went, and hence which way the presidency went. Whether the decision was right or wrong, a court decision determined who took the presidency.

At the time this seems so far removed from the British political experience that the suggestion that anything like that was ever likely to happen here would have been regarded as ludicrous. Now it might be time to think again.

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Sir Alistair Graham

Sir Alistair Graham, Chairman of the Committee on Standards in Public Life, has warned in trenchant terms of the risks to forthcoming local elections caused by inadequate voting systems. When such a senior official is suggesting that electoral fraud threatens the very fairness and security of the process, it is time to take heed. Postal voting, and the prospect of pilot schemes for Internet and telephone voting, will always attract a risk of fraud. The way to deal with this is to introduce individual registration backed up by suitable safeguards such as checking national insurance numbers etc. At least this is what should be done according to Sir Alistair, and also according to assorted electoral experts and government officials. One might also think that commonsense shows that there has to be a rigorous registration system to match the risks that new forms of voting bring. However this has been rejected by ministers. Sir Alistair points the finger of blame in particular at the Department for Constitutional Affairs and Lord Falconer.

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Tower Hamlets fraud

With Sir Alistair noting that in Tower Hamlets up to one in seven of the votes cast in the last local elections may have been fraudulent, his suggestion that this is the slippery slope towards a High Court Judge ending up deciding who forms the next government seems far from fanciful. It would be a terrible blow to democracy if it came to that.

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Sad day for democracy

From a legal perspective, it would also be bound to undermine confidence in the law. The rule of law is an important part of every democracy. However it will be a bad day for the public view of the law and lawyers if it is perceived that ultimately lawyers rather than the voters are deciding who runs the country. Of course, it would never be a question of that. It would be a question of deciding whether the apparent vote was impugned. Whichever way that decision went however, one side or other of the political divide would be likely to be suspicious of the judicial input. It will be a sad day indeed if the failing of politicians to put suitable electoral safeguards in place, led to a conflict that undermined the public's view of judicial impartiality in the political process.

Michael J. Booth QC