Victorian independent candidates are launching legal action over the state electoral commission’s decision to reject their how-to-vote cards.
Melissa Lowe, an independent candidate in the marginal electorate of Hawthorn, and Sophie Torney in Kew have confirmed they have engaged legal representation and will seek to challenge the decision at the Victorian Civil and Administrative Tribunal.
The duo, as well as independent candidates Felicity Frederico in Brighton, Nomi Kaltmann in Caulfield and Kate Lardner in Mornington, submitted the how-to-vote cards on Monday, which feature the number “1” beside their names and have blank preference boxes next to other candidates.
Kaltmann, Larder, Lowe and Torney are all supported by Simon Holmes à Court’s Climate 200 outfit.
The cards were rejected on Tuesday by the Victorian Electoral Commission (VEC), which told the candidates they were likely to “mislead or deceive an elector in the casting of their vote”.
In a statement provided to Guardian Australia, the VEC said how-to-vote cards cannot include “any visuals of blank boxes, ticks or crosses next to candidate names”.
“The reason blank boxes are not accepted on a how-to-vote card lodged for registration with the VEC is because they may induce a voter to vote 1 for the candidate, but not number all the remaining boxes. This would mislead the voter to cast an informal vote,” a spokesperson said.
The VEC said the how-to-vote cards can neither be distributed at early voting centres or on election day.
“If a candidate wishes to challenge the VEC’s decision on how-to-vote cards or its interpretation of the act, they are welcome to do so.”
In written statements, Lowe and Torney noted the contrast between the VEC’s approach and that of the Australian Electoral Commission, which allowed the distribution of how-to-vote cards with blank boxes at the May federal election by teal independent Monique Ryan in Kooyong, a seat that overlaps with both Hawthorn and Kew.
The informal vote in Kooyong was 2.89% of votes, a small improvement on the 2019 election.
Independent Zoe Daniel, in the seat of Goldstein, also used a similar how-to-vote card. Informal voters increased in the electorate by 1.22% to 3.43%, but remained in line with the state-wide average of 3.5%.
Lowe said there was no evidence that open-ticket how-to-vote cards increased informal votes, and criticised the VEC for its “willingness to block independents on such trivial pedantry”.
“Rather than ensuring a level playing field, the approach taken by the VEC only works to further the electoral advantages of the major parties ahead of community-backed independents,” Lowe said.
“I’m hopeful that the VEC will review its position, and use this as an opportunity to focus on urgently resolving ongoing issues of electoral integrity involving major parties rather than taking pedantic stands based on unevidenced opinions.”
Torney said the decision by the VEC “unfairly discriminates against our campaign, prevents us from sharing information with Victoria’s most vulnerable voters, and will cost us votes”.
“It is unacceptable for the VEC to say our how-to-vote card is misleading. They must explain how, particularly as our how-to-vote card instructs voters three times to number all the boxes. This is more instruction than the VEC provides on the official ballot papers,” Torney said.
“To disadvantage our campaign on the basis of a subjective view without evidence is extraordinary. Our campaign has engaged legal representation and will challenge the decision in Vcat.”
Lardner said she would not be directing preferences and encouraged Victorians to “vote in line with their own values”.
“The VEC should not be attempting to coerce independent candidates to direct preferences,” she said, adding that she was exploring legal options.
In 2018 the independent MP for Shepparton, Suzanna Sheed, unsuccessfully attempted to overturn the rejection of her how-to-vote card due to blank boxes.
Torney has also indicated a willingness to pursue the matter in the supreme court.
The Victorian Coalition campaign headquarters has said the independent candidates don’t want to allocate preferences as it would “force them to reveal that they back the re-election of Daniel Andrews”.
Victoria goes to the polls on 26 November.
