Several prison inmates voted illegally

Updated 11.30am with Electoral Commission response

Among the thousands of votes that will be counted in Naxxar this weekend, there will be around a dozen that should never have been cast, Times of Malta can confirm.

The illegal votes were slid inside the prison’s ballot boxes during early voting last Saturday, after an administrative error between the courts and the Electoral Commission allowed around 50 inmates to receive voting documents by mistake.

The right to vote is one of the privileges that goes out the window the moment someone is sentenced to prison, but not all inmates are barred from voting.

Inmates awaiting trial, those serving short sentences of under 12 months and inmates with a pending appeal retain their voting rights. This is why several inmates receive voting documents normally ahead of the election and are asked to cast their ballots inside prison during early voting.

Sources close to the electoral process said this is why Electoral Commission officials did not question the validity of the voting documents issued to people at Corradino Correctional Facility (CCF) earlier this month.

They had the voting documents delivered to the inmates in prison, assuming they were all among those legally entitled to retain their voting rights.

Except that around 50 of them were not.

Several sources close to the Electoral Commission, the prison and the courts confirmed that the commission learned about the error after the voting documents were already delivered to the inmates.

Before voting day, it sent letters to the inmates, informing them that they had received a voting document by mistake and that they were prohibited from voting. They were also warned they could face legal prosecution if they voted anyway.

The letter was the commission’s only way of preventing the inmates from voting since, by law, once a voting document is issued, the commission has no power to confiscate it.

The sources said the letters were delivered to around 50 inmates whose voting documents were issued by mistake, but on Saturday, a handful of them went ahead and voted anyway.

It remains unclear how many inmates voted, but it was around a dozen, according to sources.

The police could potentially identify who they were and prosecute them

Inmates who voted committed a crime, and while their votes cannot be fished out of the boxes now (the votes will be counted anyway this weekend), the police could potentially identify who they were and prosecute them.

The issue was first flagged on social media by lawyer Jason Azzopardi earlier this week. He had flagged a similar error in the last general election.

Days before the 2022 election, the PN alleged that multiple ineligible inmates were allowed to vote under similar circumstances due to data-sharing failures between the courts and electoral officials.

Back then, the party had called on the Electoral Commission to cancel voting held in prison and start the process over, but that never happened.

So, whose fault is it?

The Electoral Commission, the Court Services Agency and the Correctional Services Agency are locked in a game of finger-pointing over who is to blame for the error.

When asked how barred individuals were physically permitted to drop ballots into boxes inside the prison, the court and prison said they were not to blame and pointed their fingers at the Electoral Commission.

However, the Electoral Commission said any deletion of a name from the electoral register "may only occur based on official information formally transmitted to the Electoral Office, indicating circumstances in which a person has lost the right to vote.

"In the cases under reference, the Electoral Office confirms that all deletions relating to imprisoned inmates were carried out solely based on information received from the Court Services Agency in a timely manner. Where the Commission was not notified of inmates who had been sentenced to more than twelve months, such individuals are, as explicitly required by law, to remain on the electoral register."

It said that during preparations for prison inmates to vote on May 23 and 22 "it emerged that there were inmates who had been sentenced to more than twelve months and in respect of whom the Electoral Office had not been formally notified."

These people’s names consequently remained on the register and voting documents were automatically generated and delivered directly to them in prison.

"In terms of Article 35(1) of the General Elections Act, the Commission has no legal authority to withhold any voting document once issued," it said. "However, the proviso to this article makes it unequivocally clear that any voter who is aware that they have lost the right to vote and nonetheless proceeds to vote would be committing a punishable offence. This clarification is provided to affirm the Commission’s strict compliance with the provisions of the law, to set out its precise legal position, and to underscore where responsibility lies under the applicable legislation."

It confirmed it wrote to the inmates, outlining what could happen if they voted and that they had they had received the letter. 

In its reply to questions, the Court Services Agency did not shoulder responsibility and defended its operation, claiming it is in “constant communication” with the commission “to ensure that accurate and up-to-date information is provided at all times”. And then it shifted the blame.

“As you will appreciate, there is always a transition period from the moment an election is called, during which the relevant registers and records need to be reconciled,” a spokesperson for the agency said.

“The electoral register is compiled and maintained by the Electoral Commission, and the issuance of voting documents falls squarely within the commission’s remit. Any specific questions regarding the issuance or withdrawal of voting documents should therefore be directed to the Electoral Commission.”

The court is open to “cooperating fully in any review of the processes involved”, they added.

In its reply to questions, the prison authorities said they followed the commission’s instructions and lacked the authority to vet voters.

“The responsibility for determining eligibility to vote, as well as the issuance of voting documentation, lies entirely with the Electoral Commission. In this instance, the Correctional Services Agency acted in accordance with the documentation and instructions provided by the commission,” a prison spokesperson said.