Liberal candidate Gisele Kapterian has appealed her narrow loss to Nicolette Boele in the federal seat of Bradfield to the Court of Disputed Returns, raising questions about the interpretation of ambiguous handwritten markings on ballot papers. According to constitutional expert Professor Anne Twomey, the challenge does not involve questions of law but rather mundane judgments about whether a ‘1’ is actually a ‘7’ or a ‘6’ an ‘8’.
Australian elections are widely regarded as fair, with mandatory enrolment and turnout, paper ballots, and oversight by scrutineers and the independent Australian Electoral Commission (AEC). However, the prospect of an election outcome being determined by subjective assessments of poor handwriting has been described as jarring and at odds with the rigorous procedural fairness valued in Australian electoral law.
The last time the courts considered such questions was in 2007, following the McEwen election, resulting in the federal court case Mitchell v Bailey (No 2). Justice Richard Tracey issued a judgment containing a lengthy schedule of 643 reserved ballots, with 153 instances where his assessment differed from the AEC’s. The judgment highlighted the subjective nature of these decisions, with comments such as “Notations reasonably resemble numbers. In particular, three of them can be recognised as figures 7, 6, 5.”
Political scientist Simon Jackman has proposed using artificial intelligence to help resolve such disputes. Machine learning algorithms trained on massive datasets of handwritten digits can recognise digits with 99.82% accuracy, and the AEC already uses digital scanning for Senate ballots. These algorithms output probabilities for each digit, which could be used to guide judges in ambiguous cases. For instance, a ballot with a mark that has a 70 per cent probability of being a ‘1’ and a 30 per cent probability of being a ‘7’ could be classified accordingly.
Jackman argues that such algorithmic assessments, rigorously validated, could offer a fairer alternative to subjective human judgment, though he acknowledges that no system is perfect. The proposal comes as the Bradfield recount continues, with the court yet to rule on the disputed ballots.
