Our country has faced seven presidential elections and the winner had obtained more than 50 per cent of votes on each occasion. In a situation where none of the candidates obtain more than 50 per cent of the votes, the procedures to be followed, have not been tested as the necessity has not arisen.
The laws regarding the procedures are stated in, the ‘Presidential Election Act, No 15 of 1981’ and ‘Article 94 of the Constitution’.
Each voter can cast their votes for a maximum of three candidates in a preferential order (1). We could cast our votes in the following manner,
There could be two possible scenarios in which a president could be chosen through an election.
Scenario 1
Initially they will count only the first preferential votes and the votes which has the X symbol cast to each candidate. Then accordingly, if a candidate has obtained more than 50 per cent of the valid votes, he will be declared as the President (2).In such circumstance the second and third preferential votes will not be counted.
Scenario 2
In a situation where none of the candidates have obtained more than 50 per cent of the votes in the initial count, the second and third preferential votes have to be considered in the following manner.
Step 1
In such scenario only the top two candidates who had obtained the most number of votes will remain in the contest and the rest will be eliminated.(3)
Let’s say there are 1000 valid initial votes cast in the following manner,
As none of them have obtained more than 50 per cent of the votes, only A and B will be remaining in the contest and C and D will be eliminated.
Step 2
Now the second preferential votes should be considered. The second preferential votes cast under the two top candidates (A and B) should be ignored and the rest (C and D) should be considered. (4)
Sample of ballot papers are given in the charts below and the second preferential votes should be considered in the following manner,
So ,we should consider only C and D’s 250 first preferential votes and check for whom the second preferential votes had been cast under them.
Step 3
Among the 250 votes let’s say only 150 second preferential votes have been cast and such votes have been cast in the following manner,
Now we have to consider the second preferential votes obtained by only A and B and add them to their initial vote count.(5)
Step 4
According to the chart given under Step 3, now we have to consider the second preferential votes obtained by C (30 Votes) and D (20 Votes) and count the third preferential votes under them, which had been cast to either A or B and add them to their vote count.(6)
Sample of ballot papers are given in the charts below and the third preferential votes should be considered in the following manner,
Step 5
According to the chart given under Step 3, let’s say out of the 50 second preferential votes cast to C and D, only 40 had cast their third preferential votes to either A or B in the following manner,
Now we have to considerthe 3rd preferential votes obtained by A and B and add them to Initialand 2nd preferential vote count.
Since B has got more votes than A, the Election Commissioner should declare B as the President. According to math, when the competition is between only two candidates, whoever has more votes will eventually have the majority between ther emaining two candidates.(7) According to my example both the candidates have obtained 890 votes in total. Among those 890 votes, A has obtained 440 votes which is approximately 49.4 per cent of the votes between them and B has obtained 450 votes which is approximately 50.6 per cent of the votes between them.
In other words, B has won the majority of the votes between the two remaining candidates.
According to my example, neither 440 people have chosen A as their first preference nor have 450 people chosen B as their first preference. But in comparative terms, between the two candidates, 450 people have clearly stated they prefer B compared to A and only 440 people have stated they prefer A, compared to B. This is the rationale behind counting the preferential votes where none of them have obtained the majority in the initial count.
Just another additional fact,in case if the votes are equal in any of the deciding counts, the Commissioner has the discretion of choosing a method to draw lots and choose the president.(8)
References
1. Form B (Back of Form) (A) (3) (b) of the Presidential Election Act No 15 of 1981
Article 94 (1) of the Constitution
2. S.56 of the Presidential Election Act No 15 of 1981
Article 94 (2) of the Constitution
3. S.57 (1) (b) (i) of the Presidential Election Act No 15 of 1981
Article 94 (3) of the Constitution
4. S.57 (1) (b) (ii) (aa) of the Presidential Election Act No 15 of 1981
Article 94 (3) (a) of the Constitution
5. S.57 (1) (b) (ii) (aa) & S.61 of the Presidential Election Act No 15 of 1981
Article 94 (3) (a) of the Constitution
6. S.57 (1) (b) (ii) (bb) & S.61 of the Presidential Election Act No 15 of 1981
Article 94 (3) (b) of the Constitution
7. S.61 of the Presidential Election Act No 15 of 1981
Article 94 (3) of the Constitution
8. S.63 of the Presidential Election Act No 15 of 1981
Article 94 (4) of the Constitution