To cast a formal vote an elector may choose to vote either ‘above the line’ or ‘below the line’ on the Legislative Council ballot paper.
Voting above the line
If an elector chooses to vote above the line, they must place the number ‘1’ in the group voting square for the group of their choice.
The elector may show further preferences by placing the number ‘2’ in the group voting square next to their second choice, the number ‘3’ in the group voting square next to their third choice and so on.
In the example Legislative Council ballot paper at Figure 1, assume Groups A, B, C and E each have 15 candidates in their group. The elector has voted above the line. The numbers below the line illustrate how this ballot paper would be counted.
Above the line vote
Counted
1 for Group A ‘Labor'
Ballot paper is counted 1 to 15 in ballot paper order for the 15 candidates in Group A
2 for Group E 'The Greens'
Ballot paper is counted 16 to 30 in ballot paper order for the 15 candidates in Group E
3 for Group B
Ballot paper is counted 31 to 45 in ballot paper order for the 15 candidates in Group B
Figure 1
Voting below the line
If an elector chooses to vote below the line, they must vote for at least 15 candidates by placing the numbers ‘1’ to ‘15’ in the squares next to the candidates in the order of their choice.
The elector may show further preferences, starting with the number ‘16’ and so on.
When voting below the line, the elector is not required to vote for all candidates in a group before voting for candidates in another group as shown in Figure 2.
Figure 2
Ballot papers marked above and below the line
If a ballot paper is marked both above the line and below the line, and both sections are formal, the below the line section takes precedence. If one section (above or below the line) is formal and the other informal, the formal section takes precedence.
Under no circumstances should an elector be instructed to vote both above and below the line on their ballot paper.
Legislative Council counts
Legislative Council ballot papers will undergo the following counts:
The Initial Count is a manual count. Ballot papers are examined for formality and sorted to the following categories:
Above The Line – Ballot papers are sorted to piles according to the first preference above the line for each group that has a group voting square
Blanks – Blank ballot papers are sorted to one ‘Blanks’ pile
Others (including Informals) – All ballot papers that do not belong to the above categories.
The Initial Count is conducted in two stages, Sort 1 and Sort 2
Sort 1
Sorting card used
Sort 1 rule
Pink card Above The Line: The Greens
An Above The Line ballot paper where the first preference is for The Greens
Pink card Above The Line: Labor
An above the line ballot paper where the first preference is for Labor
Pink card Above The Line: Liberal/The Nationals
An above the line ballot paper where the first preference is for Liberal/The Nationals
Red card Above The Line: Other Groups
(ballot papers in this pile will be re-sorted in Sort 2)
An above the line ballot paper where the first preference is for a group other than the groups above.
Black card Blanks
There are no numbers, no ticks, no crosses or other markings on the ballot paper. To be considered blank, a ballot paper must be unmarked, with the exception of the election official’s initials.
Note: Blank ballot papers are not unused ballot papers. Blank ballot papers are those issued to electors who have chosen not to mark their ballot paper before placing it in the ballot box.
Yellow card Others (including Informals)
All ballot papers that do not belong to the above categories.
This pile includes ballot papers:
Marked below the line only
Marked both above and below the line
The election officials are uncertain how to sort at the Initial Count
That are obviously informal.
Sort 2
Sorting card used
Sort 2 rule
Pink card Above The Line for every group other than The Greens, Labor and Liberal/The Nationals
Ballot papers in the ‘Above The Line: Other Groups’ pile are re-sorted into piles for each group that has the first preference.
The Check Count consists of a combination of a manual process (batching) and a data entry process:
Batching: sorting the ballot papers for each group (i.e., a single ’1’, a single ‘tick’, or a single ‘cross’ and no other preferences above the line) and multi preference.
Registration: entering the check count results into the NSW Electoral Commission’s Computer Count System
Data Entry: entering all preferences on ballot papers with more than one preference either above or below the line into the Computer Count System. The single preference ballot papers for each group and the blanks are registered as a bulk figure (the step above) and do not undergo data entry.
The Check Count is the official count that is used in the Distribution of Preferences within the Computer Count System to determine the elected candidates.
The Distribution of Preferences to determine the elected candidates is conducted by the Electoral Commissioner after the Check Count is completed. The Distribution of Preferences is conducted using the Computer Count System in an automated manner, using all the preferences and single preference totals entered during the Check Count.
Legislative Council counts timeline
The following table is a guide to the timing and locations of the Legislative Council counts. Please note this timetable may be subject to change and you must refer to the NSW Electoral Commission’s website for up-to-date information.
Note: Reference to Week 1 is the first week after election day, Week 2 the second week and so on.
Vote type
Initial Count/TCP
Check Count
Voting centre ordinary
Voting Centre Commences: 6pm election night Completes: 10:30pm election night
Legislative Council Count Centre Commences: Monday Week 1 Completes: Saturday Week 3
Voting centre ordinary not completed on the election night
Election Manager’s Office
Commences: Monday Week 1
Complete: Monday Week 1
Legislative Council Count Centre
Commences: Monday Week 2
Completes: Saturday Week 3
Early voting centre ordinary
Election Manager's Office
Commences: 6pm election night
Completes: Tuesday Week 1
Legislative Council Count Centre
Commences: Monday Week 1
Completes: Saturday Week 3
Declared facility
Election Manager's Office
Commences: Monday Week 1
Completes: Tuesday Week 1
Legislative Council Count Centre
Commences: Monday Week 2
Completes: Saturday Week 3
Postal
Centralised Postal Vote Count Centre
Commences: 6pm election night
Completes: Saturday Week 2
Centralised Postal Vote Count Centre
Commences: Tuesday Week 1
Completes: Saturday Week 3
Declaration (Absent, Enrolment, NAMAV)
Centralised Declaration Vote Count Centre
Commences: Thursday Week 1
Completes: Thursday Week 3
Centralised Declaration Vote Count Centre
Commences: Friday Week 1
Completes: Saturday Week 3
The Distribution of Preferences will be conducted by the Electoral Commissioner following the completion of counting in Week 4. The exact date and time will be determined closer to the date.
Legislative Council distribution of preferences
The Distribution of Preferences will take place at the NSW Electoral Commission head office in Sydney following the completion of check count and data entry.
The Distribution of Preferences will be conducted using PRCC. It will take approximately one hour to complete. Candidates, scrutineers, media and other interested parties may be present to witness the distribution of preferences.
The Distribution of Preferences is in accordance with the proportional representation system described in the Sixth Schedule to the Constitution Act.
A candidate is elected if they receive votes equal to or exceeding the quota. However, candidates can also be elected without receiving a quota if the remaining number of candidates in the count equals the number of vacant positions still available.
The quota is determined by dividing the aggregate number of formal first preferences by one more than the number of candidates to be elected. The quotient (disregarding the fraction) is increased by 1 to give the quota.
Number of formal votes
+ 1
22 (being 21 vacancies + 1)
For example, there are 21 members to be elected to the Legislative Council at the 2023 NSW State election. At the March 2019 NSW State election, there were 4,451,146 formal ballot papers. The calculation was 4,451,146 ÷ 22 = 202,324.818. The fraction is disregarded before 1 is added, therefore the quota equalled 202,325.
After the count of first preferences is complete, each candidate who has reached quota is elected.
Where an elected candidate has a surplus of ballot papers over the quota, this surplus is transferred to the continuing candidates (i.e., those not yet elected or excluded). If multiple candidates are elected, each candidate’s surplus is transferred (one at a time) to the continuing candidates, from the highest surplus to the lowest.
After each transfer of ballot papers, if any more candidates have reached quota, they are elected and added to the queue of surpluses to be transferred. This transfer of surpluses continues (one at a time) until all have been transferred.
If vacancies remain, the candidate with the lowest number of votes is excluded. All the ballot papers received by this candidate, including those received from surplus transfers, are sorted to the continuing candidates according to the next preference on the ballot papers.
This process continues with candidates being:
elected when their votes equal or exceed quota, with their surplus distributed as above; or
excluded, with their ballot papers distributed as above,
until either:
no vacancies remain to be filled;
the number of remaining candidates equals the number of remaining vacancies; or
all remaining vacancies can be filled by candidates whose total votes cannot be overtaken by the remaining candidates in the count.
In these circumstances, the elected candidates are elected despite not reaching the quota.
Legislative Council results on the NSW Electoral Commission website
As the initial first preference count is conducted from 6pm election night, the results will be displayed on the NSW Electoral Commission Virtual tally room page for the information of candidates, registered political parties, the public and the media.
Initial first preference count results will be updated on the virtual tally room as the initial counts progress for early voting, declared facilities, postal and declaration votes in the weeks after election day.
Check count first preference figures will be displayed on the Virtual Tally Room from approximately the Wednesday following election day onwards.
As the check count and data entry progresses over the three week period of counting, a Legislative Council state summary report will be updated daily on the Virtual Tally Room.
Reporting of final results
Following the completion of the check count and data entry of Legislative Council ballot papers and the conduct of the Distribution of Preferences using PRCC, the NSW Electoral Commission website will display the following official result reports:
Count of first preference results; and
Distribution of Preferences results.
Recount
At any time before the declaration of an election result, the Electoral Commissioner may re-count the ballot papers:
If the Commissioner thinks fit, on the request of any candidate in the election, or
On the Commissioner’s own motion.
Any request for a recount must set out the reasons for the request and be made by the candidate before the Commissioner declares the result of an election. The NSW Electoral Commission will publish the expected date and time at which each election result will be declared.
More information about the Commission’s policy in relation to recounts is available on the State election event webpage.
Declaration of election result
Following the completion of the Distribution of Preferences, the Electoral Commissioner will declare the result of the election.
Return of the writ
The Electoral Commissioner will endorse the name of the successful candidates on the writ and will return the writ to the Governor of New South Wales.
Disputing an election
Candidates may challenge the results of an election by filing a petition with the Prothonotary of the Supreme Court, as the Court of Disputed Returns, within 40 days of the return of the writ.
Candidates are advised to seek their own legal advice should they wish to pursue this course of action.