Prior to the election the Electoral commission published guidance on the adjudication of doubtful ballot papers. The rules governing the process are set out below under the cut
Scottish Parliamentary rules relating to rejected ballot papers
Rejected ballot papers
Rule 58. – (1) Any ballot paper –
(a) which does not bear the official mark and the unique identifying mark;
(b) in the case of a constituency ballot paper, on which votes are given for more than one candidate;
(c) in the case of a regional ballot paper, on which votes are given for more than one registered party or individual candidate, or for a registered party and an individual candidate;
(d) on which anything is written or marked by which the voter can be identified except the printed number and other unique identifying mark on the back; or
(e) which is unmarked or void for uncertainty,
shall, subject to the provisions of paragraphs (3), (4) and (5), be void and not counted.
(2) At a Scottish parliamentary general election, if the constituency ballot paper and regional ballot paper are printed on the same sheet, and either ballot paper is rejected on the ground set out in paragraph (1)(a) or (d), the other ballot paper on the sheet shall also be treated as void on the same ground and not counted.
(3) Where votes are counted manually, the constituency returning officer shall check that each ballot paper bears the official mark, and where votes are counted electronically he shall check that each ballot paper bears the unique identifying mark, but in neither case is he required to check that each ballot paper bears both the official mark and the unique identifying mark.
(4) A ballot paper on which the vote is marked –
(a) elsewhere than in the proper place;
(b) otherwise than by means of a cross; or
(c) by more than one mark,
shall not for such reason be deemed to be void if an intention that the vote shall be for one of the candidates (or in the case of a regional ballot paper, for one of the individual candidates or registered parties) clearly appears, and the way the paper is marked does not of itself identify the voter and it is not shown that he can be identified by it.
(5) Where different numbers have been written by a voter on a ballot paper apparently as a vote in a sequential order of preference, and the ballot would otherwise be rejected under this rule, the ballot shall be treated as a vote for the candidate (or in the case of a regional ballot paper, for the individual candidate or registered party) against whom the number 1 appears.
(6) The constituency returning officer shall record, by marking the ballot paper or an electronic copy thereof, the rejection of any ballot paper which under this rule is not to be counted, and shall also record any objection that is made by a counting agent to the decision to reject the ballot paper.
(7) The constituency returning officer shall draw up a statement showing the number of constituency ballot papers and the number of regional ballot papers, respectively, rejected under each of sub-paragraphs (1)(a) to (e).
Decisions on ballot papers
Rule 59. – The decision of the constituency returning officer on any question arising in respect of a ballot paper shall be final, but shall be subject to review on an election petition.
It appears that on interpretation of these rules that an instance of a voter not voting on either region or constituency should not invalidate a valid vote on the other part of the paper. The confusion here may arise from rule 58 (2) which provides that “At a Scottish parliamentary general election, if the constituency ballot paper and regional ballot paper are printed on the same sheet [as was the case in the election last thursday), and either ballot paper is rejected on the ground set out in paragraph (1)(a) or (d), the other ballot paper on the sheet shall also be treated as void on the same ground and not counted.” However, this is specific to rejection on grounds (1)(a) or (d) that is where the voter has written something that would allow him or herself to be identified; or where the ballot paper has not been stamped with the unique number. It is not a general rule that invalidates both votes. Accordingly, if – as was suggested in the press yesterday – votes were rejected in column A because they were blank on column B of the paper the returning officer has acted ultra vires – and the decision will be capable of challenge.
Similarly the documentation also indicates that where people used a numbered preference system on the Parliament ballot paper (as introduced in our local government votes on Thursday) then the returning officer is to interpret this as a vote for the candidate or party numbered “1”. It was suggested that votes were rejected for this reason too. Again this would be ultra vires the returning officer.
Where though there is a double vote in one column and no vote in the other (the ITV Play approach) then this will be rejected and cannot be saved.