More than 1 million votes could be affected by Section 24A

29 May 2024

When South Africans go out to vote today some may be surprised to discover that they may no longer vote at a station different from the one where they are registered, unless they applied to do so beforehand.

Section 24A of the Electoral Act was amended in 2021, and again on May 7, 2024, introducing a new rule that turns away voters from voting stations, even if they registered to vote on time, if they are at the wrong station.

A report published by the IRR indicates that in 2019 there were 1,892,159 votes cast outside of voting stations where people had registered to vote. At the time voters could fill out an application form on voting day at any station and their national votes would be counted regardless, though they could not vote on a provincial ballot outside their province.

If a similar number of people expected to be able to vote at any voting station on the national ballot in 2024 that could mean roughly 1.9 million voters being turned away by surprise. Many would be able to overcome this problem by travelling to the correct station if, for example, they were registered in the same city.

However, the IEC’s website indicates that in 2019 there were almost 590,000 more valid votes cast on the national ballot than on provincial ballots. The most common reason for such an occurrence is understood to be that people are voting outside the province in which they were registered.

Subtracting the roughly 30,000 South Africans who voted abroad under a different process leaves 560,000 or so who may have voted within the country, but outside their province in 2019. Even if half that number adjusted to the new rule, that would still leave hundreds of thousands of people without an effective path to vote this time round in 2024.

These numbers may need to be recalibrated downwards in light of further details. However, in a typical election, less than 50,000 votes are sufficient for a seat in Parliament. The possibility, therefore, that the new 24A rule could have a material impact is considerable.

Is the new rule fair, and did the IEC give fair notice?

When the law was amended, one stated purpose was to stop anyone from being able to vote twice in different voting stations. However, such fraud would still require the presentation of different IDs regardless, so the new rule may have been irrational.

Another stated purpose was efficient ballot management, since allowing people to vote anywhere meant that extra ballots had to be kept on hand. Securing ballots is a valid purpose, but new security measures should not be introduced in ways that throw voters off without fair notice.

On fair notice, the IEC confused the process from the beginning by omitting any reference to the 24A application deadline in its first gazetted timetable published on 24 February.

Then, on 26 February, the IEC gazetted two notices, one of which was a reprint of the entire timetable with almost no changes except the inclusion, in paragraph 18 of 23, of the 17 May deadline. This went largely unnoticed by the public.

The IEC will have known by 17 May how many Section 24A applications were submitted, and so how effective, or ineffective, its public awareness drive really was. Disclosure of that number will be key to evaluating the IEC’s good faith commitment to fair notice.

Furthermore, the IEC should have been tracking major news outlets to see if its message was carried far and wide.

South Africa’s democracy depends on free and fair elections managed by the IEC. It will be important to reflect on the extent to which budget constraints prevented that crucial institution’s ability to get the 24A rule change message across.

It will also be important to evaluate the extent to which there has been any material impact.

Perils to democracy lie on both sides. On one hand, opportunistic enemies of democracy will seize on any excuse to discredit the elections and reject their results, as evidenced elsewhere, from other states in the SADC region to the US. It is therefore necessary to treat complaints about the new 24A rule cautiously.

On the other hand, state organs, political parties, and many public relations teams are incentivised to act as if nothing has gone wrong if they are afraid that they might be partly blamed for abetting the failure to give fair notice.

The solution is to confront the issue soberly and expeditiously. “Sunlight”, as the late US judge Louis Brandeis said, is “the best of disinfectants”.

Direct questions have been sent to the IEC, which deserves the respect of good faith engagement, about the 24A records. If the applications matched reasonably expected outcomes this will assuage concerns about the new rule’s impact on voter participation. Answers will be reported promptly.

Issued by Gabriel Crouse, IRR Legal Executive Director, 29 May 2024