Two independent candidates are threatening to take Victoria's electoral commission to court over a disagreement with crucial how-to-vote cards.
Felicity Frederico, who is running as an independent for the seat of Brighton, was advised by the Victorian Electoral Commission (VEC) that her how-to-vote cards – which are often used by party supporters to direct voters to preference candidates in a specific order – could not be used on election day due to blank preference boxes next to candidate names.
Ms Frederico is running against Liberal MP James Newbury. In 2018 she lost Liberal preselection to Mr Newbury and has since left the party.
In an email, the VEC told Ms Frederico that the blank boxes could lead to voter confusion.
"It may induce a voter to vote 1 for you, but not number all the remaining boxes," a VEC Candidate Services officer said.
"This would mislead the voter to cast an informal vote."
Under Victoria's Electoral Act, how-to-vote cards must indicate the voting preference for all candidates listed on the card, or contain a statement that a number must be placed against the name of each candidate.
Ms Frederico said her card, which includes a "1" next to her name and a statement instructing voters to fill out each box, abided by the legislation.
"Their legal interpretation is wrong," Ms Frederico said.
"They're treating the community like they're idiots, the community knows that you've got to number every box.
"Especially coming off the back of the federal election – we're not that stupid, are we?"
In a statement to the ABC, the VEC reiterated that it is required to refuse registration of a how-to-vote card "if it is likely to mislead or deceive an elector".
The commission cited as precedent a 2018 VCAT decision regarding independent MP for Shepparton, Suzanna Sheed, who unsuccessfully attempted to overturn the rejection of her how-to-vote card due to blank boxes.
"There are many districts in Victoria with high numbers of culturally and linguistically diverse communities and people with low literacy, and it is important they do not receive confusing instructions about filling out a ballot paper that could lead to informality," a spokesperson for the VEC said.
Candidates are not required to register the design of their how-to-vote cards with the VEC for use during early voting, but must have them approved for election day – a distinction described by Ms Frederico as "ridiculous."
"That's the crazy thing, we're only talking about a how-to-vote card for half of the vote," Ms Frederico said.
"There's a rule that applies for 50 per cent of votes, and then there's a rule for the other 50 per cent."
Independent threatens to take VEC to court
Independent candidate for Kew, Sophie Torney, who also wishes to leave her how-to-vote card blank, said requiring two separate sets of how-to-vote cards would place too much additional financial strain on her campaign.
Early voting opens on Monday, with the VEC extending hours on three weeknights after a record number of enrolments.
She said if the VEC did not approve her design when she submitted it on Monday, she would challenge the decision through VCAT.
She said if that did not succeed, she would escalate the case to the Supreme Court.
Ms Torney also pointed to the differences between the Australian Electoral Commission and the VEC, noting that Kooyong independent candidate Dr Monique Ryan was permitted to have blank boxes on her how-to-vote card.
"We shouldn't be forced to create an inferior how-to-vote card because VEC officials have not correctly interpreted their own legislation," Ms Torney said.
On Monday, Ms Frederico will be submitting two designs for her how-to-vote cards – one will be a back-up, which doesn't mention any other candidate.
She said she was weighing up her legal options if her designs are knocked back.
"As a true independent, I don't want to be preferencing anyone," Ms Frederico said.
"I don't want to be beholden to any deals. I'm answerable to the community, I want the community to decide where preferences go."
