Dominic Raab said something a bit strange and foolish on 3 December 2019. I record this not because that is a remarkable event in itself, but because his offhand remarks to intrepid interviewer Michael Crick skirted on the verge of getting him in legal trouble. Crick noted him saying that: he’s “quietly confident” of beating the Lib Dems who have been campaigning hard in his Esher & Walton seat.  “Have a look at the postal votes,” he tells me. 

Oops. As the wise, cynical Matt Singh commented on Twitter: ‘Always say internal polling. Just say internal polling️’ The only thing that you’re supposed to know about postal votes is how many have come in, and you’re not really supposed to talk about them either. The Acting Returning Officer for the council in the constituency issued a statement:

“There has been growing speculation on social media that brief remarks made by Dominic Raab in an interview with Michael Crick yesterday imply knowledge of the postal vote returns in the Esher and Walton constituency. I have clarified with Mr Raab’s Agent that Mr Raab was referring to his Party’s own canvas responses derived from conversations on the door step.”

This has nothing whatsoever to do with the official election process. Postal votes are not separated by candidate and counted until after the close of poll on 12 December so it is impossible for anyone to know the result until after that time.

It was generous of the Acting Returning Officer to accept the account of the Raab campaign. Few people in the business would share this interpretation of talking about ‘postal votes’ and how they look. Politicians and agents usually get election jargon right, and ‘canvass returns’ and ‘postal vote returns’ mean completely different things. It would be a shame if the Foreign Secretary can’t master some basic terminology, but I suppose we have recently had other Foreign Secretaries who have been even more haphazard with detail.

The Elmbridge Acting Returning Officer protests a bit too much about how little postal vote verification can tell a campaign about how an election is going. While there is indeed no count of votes, nor even a rough sorting into piles for each candidate, it is possible to gain some insight into the pattern of postal votes. Each candidate is entitled to have observers to monitor postal vote verification, which happens on several days late in the campaign. The ballot papers are removed from the inner envelope in the postal vote pack and matched with the verification serial numbers, and a count is undertaken to ensure the right number of ballots are in the postal vote pile. In a properly run count the papers are placed face down and counted quickly, but there are a few points at which observers can get an idea of how people are voting. The ballots have to be unfolded, and people who mark their vote particularly firmly make a clear imprint on the back of the ballot paper that an election agent can identify. The parties each have sub-rosa reporting chains to get the information to where it will be most useful.  It is ironic that conspiracy theories about nefarious forces erasing soft pencil marks on ballot papers actually make votes slightly more public.

Postal vote tallies are a bit of a legal grey area, and prosecuting authorities in England & Wales and Scotland take different views of it. The Electoral Commission’s Guidance for Observers  is clear that it is not a good idea:

1.36 Ballot papers will be kept face down throughout a postal vote opening session.

Anyone attending an opening session must not:

• attempt to see how individual ballot papers have been marked
• attempt to look at identifying marks or numbers on ballot papers
• disclose how any particular ballot paper has been marked
• pass on any such information gained from the session

1.37 Anyone found guilty of breaching these requirements can face an unlimited fine, or may be imprisoned for up to six months.

It is easy to see how, shall we say, Raab’s ill-chosen words could be interpreted as evidence that his campaign has infringed the first and fourth of the rules under 1.36. But it would have been far from the first or last time that this has happened. In 2010 Labour MP Kerry McCarthy accepted a police caution for revealing postal vote samples on Twitter. She went further than Raab appeared, to the uninitiated, to admit, by posting actual numbers, and apologised profusely:

“It was a thoughtless thing to do, and I very quickly realised that it was not appropriate to put such information in the public domain. Because this was not official information, and no votes had been counted, I thought of it as being akin to canvass returns, i.e. telling people how well we were doing with Labour promises on the doorstep, but I appreciate now it was wrong to do so.” 

Canvass returns again! It’s almost as if Raab looked up what happened last time a politician had put their foot in it about postal vote sampling and read what they had said, but of course it couldn’t have been and Raab was genuinely confused about the difference between postal votes and canvass returns.

There was a peculiar article during the 2015 election which I noticed at the time. It was published on a website called ‘Labour Uncut’, a provocative site on the rightmost fringe of the Labour family that was keen on publishing disobliging material about Ed Miliband’s leadership. Five days before the election, writer Atul Hatwal reported that Labour were seriously unnerved by the postal vote returns and that they were much worse in the marginals than the published polls.

Postal voting started in mid-April. Over 5 million are expected to cast their ballot in this way and over the last week, local teams from all parties have attended postal vote opening sessions in each constituency.

Although the parties are legally not allowed to tally votes at these events, they all do and the constituency teams then dutifully pass their field intelligence back to HQ.

These are not opinion polls results or canvass returns but actual votes, hundreds of thousands of votes, from across Britain. Numbers have been flowing from each marginal to party strategists to give the most accurate picture of the current state of play.

“Labour insiders familiar with the latest figures have told Uncut that the picture for Labour in marginal seats, where it is fighting the Tories, is almost uniformly grim.”

… is what Hatwal wrote in 2015 and he seems to have been on the money. The obvious restraint exercised by Raab does suggest that in Esher at least the parties have abandoned this long-established habit and foregone a source of useful data. 

Postal vote reports are based on an incomplete sample of the earliest ballot returns, and postal skew heavily towards the Conservatives. London Mayor and Assembly elections are machine-counted and there is a separate category of ‘postal votes’ recorded for each borough, so we have some hard figures to compare. In the 2016 London Mayoral election, Zac Goldsmith led Sadiq Khan by 4.5 percentage points on the postal votes but was blown away by 13 points in the on the day vote (when about 80 per cent of votes are cast). Compared to the overall vote count, the postal vote was off by 14 points on the Khan/ Goldsmith lead. The variation in individual boroughs went from negligible to over 20 points. It needs an experienced election agent to reach meaningful conclusions from a postal vote sample.

There have been rumours in 2019 about postal vote patterns, and you can find a few reports on Twitter if you search. But one should exercise caution, both legally and in drawing conclusions. Even if you probably won’t go to prison for six months, reporting postal vote samples is still, as a great philosopher once wrote, ‘naughty, naughty, very naughty.’