Should the man with the most votes win?

Thanksgiving arrived early for constitutional lawyers in Washington. Legal teams representing the major political parties are embroiled in unprecedented litigation to determine who will take on the most powerful job in the world. Could what has happened in the American presidential elections be repeated here at the next general election?

Thanksgiving arrived early for constitutional lawyers in Washington. Legal teams representing the major political parties are embroiled in unprecedented litigation to determine who will take on the most powerful job in the world. Could what has happened in the American presidential elections be repeated here at the next general election?

Al Gore, despite winning a greater proportion of the vote, nevertheless faces the spectre of defeat. If Governor Bush secures Florida he will attain a majority in the electoral college and become president. The first-past-the-post rule means that a candidate who has small majorities over a spread of constituencies prevails over one that enjoys a more concentrated vote. It is also true that this effect can be exacerbated in allowing some of the lesser populated states a greater proportionate influence than the head count would otherwise permit.

The United Kingdom's electoral method in many aspects mirrors the American model. Each constituency elects its member of Parliament on a winner-takes-all basis. Therefore the risk of capturing a majority vote but not forming a government is real. This happened in February 1974 when Edward Heath's Conservative Party had more votes than Labour. Harold Wilson went on to be prime minister.

The relative merits of different systems can be debated ad nauseam. However, the pandemonium in Florida raises other issues about a democracy's ability to express its electoral preference. In the words of President Clinton, the people have spoken but it may take some time to understand what they have said. In Britain the framework for elections is found in the Representation of the People Act 1983 and associated regulations. These attempt to cover in copious detail every conceivable contingency in the voting process.

In the Gore/Bush débâcle considerable attention has focused upon ballot papers issued in the county of West Palm Beach, Florida. This has inevitably prompted concerns about voting papers here.

There are strict guidelines concerning layout of ballot papers. Candidates' names must appear alphabetically and be listed vertically on the left-hand side with a space left on the right where a cross can be made adjacent to the candidate chosen. Ballot papers produced in the "butterfly format" adopted in West Palm Beach would be in breach of the rules.

In every election, despite the apparent simplicity of the procedure, you can expect spoilt ballot papers. In certain instances votes must be disregarded. One common cause is the appearance of the voter's name or initials. These must be discounted because the identity of voters must not be revealed. Another reason for rejection is if a vote is cast for more than one candidate.

It is the returning officer's responsibility to weed out defective papers. Where the parties are neck and neck a candidate or his election agent are within their rights to request one or more recounts so long as the returning officer agrees that this is reasonable. Ian Bowden, electoral services manager at the London Borough of Islington, emphasises the need for fairness. In practice he says that "unless the majority was huge and a recount would not change the result a returning officer would not deny one. It all depends on what is reasonable." If the count produces a dead heat the winner is immediately declared by the returning officer drawing the name of one of the candidates' names from a hat.

In Florida as many as 19,000 ballot papers may have been rejected. Some reputedly bear markings in favour of both Al Gore and Pat Buchannan, the Reform Party nominee. Although Mr Buchannan has graciously suggested that voters probably plumped for his name in error initially, the consequences could still be fatal to those potential votes.

What happens to questionable ballot papers completed in Britain? Regulation 47(2)(c) states that a ballot paper may still be admissible "if an intention that the vote shall be for one or other of the candidates clearly appears and the way the paper is marked does not itself identity the voter". The key factor here is that the electorate is given an opportunity to express their view even though the procedure does not strictly comply with every rule. A tick or other mark that clearly relates to a particular candidate should be admitted.

Documents that fail to pass muster are examined in the first instance by the returning officer, who endorses the ones that are flawed with the comment "rejected". The ball is then passed to the candidates. All rejected ballot papers must be produced for inspection to the candidate or his agent on demand. Ultimately the decision of the returning officer will be final. Nevertheless if the candidate remains aggrieved there is the power to resort to legal challenge by a procedure known as an election petition. This route must be followed within days of the result but the proceedings could take months. The outcome of a general election could hinge on this.

A further dimension to the election concerns postal ballots. American rules permit votes mailed on the election date to be included. Accordingly, even if the option of legal proceedings is abandoned, final determination of the contest may be delayed until postal votes are received. It is estimated that several thousand are outstanding in Florida. This uncertainty would not be tolerated here since postal forms must arrive no later than on the day of the general election.

Other circumstances can distort an election result and in extreme circumstances could lead to a ballot being voided. Obvious examples are electoral fraud such as paying for votes. A more subtle but potentially disruptive scenario is where voters are misled. A plethora of deliberately confusing names has featured in elections. Richard Huggett, for example, stood as a "Literal Democrat" for Devon and Plymouth East in the 1995 European election. In polling 10,000 votes there was speculation that he captured significant votes intended for the official Liberal Democrat nominee, who lost the seat by 800 votes to the Conservatives.

In order to combat abuse, the Registration of Political Parties Act 1998 was introduced. Jack Straw announced that the intention was to protect "the integrity of the political process". For a nominal fee of £100 political parties can be registered unless their name "would be likely to result in the party's being confused by voters with a party which has already been registered".

There remains nothing, however, to deter misleading candidates' names. This is surely analogous to cybersquatting. In 1982 when Roy Jenkins successfully returned to Parliament as leader of the SDP he faced an unusual challenge at the Glasgow Hillhead by-election. Another candidate on the ballot paper had changed his name by deed poll to Roy Jenkins. While the 282 votes polled for this "alter ego" were insufficient to upset Mr Jenkins chances, in a closely fought contest "quasi-impostors" could detract critical votes.

Election expenses can also prove a source of trouble and even prosecution. It is now recognised that current rules need updating. Candidates must expect the figures to be scrutinised. Fiona Jones, MP for Newark, was charged with knowingly making a false electoral return after the 1997 election. On appeal in April 1999 her conviction was overturned. Nevertheless the Attorney General considered it necessary to obtain a High Court declaration that she was still the MP. Des Whicher, Fiona Jones' election agent says: "It was a traumatic experience for both of us. In our view the case should never have been brought. Election expenses are a very complicated area of the law. In the event nearly the whole of our case was virtually accepted in the crown court. There was effectively a small amount of money in dispute, namely £500 for office expenses, which the judge left to the jury to decide as to whether this was accurate."

The long and the short of it is that complacency in elections is a mistake. As Anastasio Somoza, the former dictator of Nicaragua said: "Indeed, you won the elections, but I won the count." It is not the number of votes you get but the way they are counted. The lesson from Florida is that in a democracy, even one as powerful as America, every last vote counts.

The writer is a solicitor at Berrymans Lace Mawer