The missing postal ballot crisis could end up in the courts with losing candidates or disenfranchised voters challenging the result of any close contest.

Leading legal academics told The Herald that a successful challenge could lead to by-elections. 

One Tory hopeful in a tight race has already said he believes the "missing" votes could stop him heading to Westminster.

READ MORE: Downing Street dismisses missing postal vote 'disenfranchisement'

Candidates and voters have 21 days after the result is declared to apply to the Election Petitions Office to challenge the outcome.

Dr Heather Green, an independent researcher on election law who tweets at VotingRules, told The Herald: “A losing candidate or disenfranchised voters could claim that non-receipt of postal votes affected the result.

“In a close result, it might be possible to persuade the court that the missing postal votes would have tipped the result.”

The academic said it would be the first time this issue was raised in an election petition.

Dr Caroline Morris, Reader in Public Law at Queen Mary University of London, said a successful challenge would have consequences: "If, on the numbers, the Election Court found that the 'wrong' candidate was elected, the Court can either declare someone else elected or declare the election in that constituency void and require a new election to be held.”


She said individual challenges could also be brought outside the mechanism of an election petition as “individuals could bring a Human Rights Act claim on the basis that their right to vote has been denied".

READ MORE: John Swinney wants review into General Election timing

It is not known how many people have yet to receive their ballot, but it is thought it could be in the thousands.

While it is a problem across the UK, it is being keenly felt in Scotland where the school year is over and many families are away from home on their summer holidays. 

Sarah Hobbs who lives in the Moray West, Nairn and Strathspey constituency, described it as a “monumental cock-up."

“It is the first general election I will be unable to vote in,” she said. “I have voted diligently in local and national elections since turning 18 as I truly think it's crucial, particularly when women lost their lives for this right.

“I live in Highland and registered for a one-off postal vote on 10 June, and only received confirmation eight days later on 18 June.

“The postal vote was necessary as I'm currently in Orkney, having left on Saturday 29 June, and the postal vote arrived yesterday on Monday 1 July, according to the cat-sitter, three days before the General Election.”

(Image: Sarah Hobbs)

Ms Hobbs said Highland Council told her there was nothing they could do as her postal ballot pack had been sent out. Giving her an emergency proxy vote would be giving her two votes, they said.

“Instead I get no votes. Short of committing electoral fraud, or travelling 350 miles home and back in 12 hours spending another £90 on ferry and fuel, there is currently no way I can vote, despite doing everything well within the given time limits.“

READ MORE: Royal Mail insist postal vote delays aren't their fault

Meanwhile, John Swinney has called for a review of the timetable for general elections.

In a letter to Rishi Sunak, the First Minister said: “The problem has been caused by a combination of your selection of an unsuitable date for the General Election, and the timetable for UK Parliament elections, which has little room in it to address issues arising, such as the reported delays at the printers.

“In this case, the deadline for applying for a new postal vote being on June 19 meant that some postal packs had to be issued at a time when some Scottish schools were already on holiday.

“As well as establishing the facts about what happened during this election, a review into both the timetable for UK Parliament elections and how decisions are made about their timing needs to be held urgently after the General Election.”

Post Office Minister Kevin Hollinrake has blamed the Royal Mail for the delay. 

“There’s a resourcing issue. They have recruited extra people and I welcome that but they’ve got to make sure they’ve got the right number of people to deliver the mail at busy times like this,” he told the Telegraph.

“It’s not acceptable it’s sat in sorting offices. It needs to be delivered to people’s houses. So they need to put more people on to do that.”

A spokesperson for Royal Mail denied they were to blame: “We have no backlog of postal votes and, whilst we are not complacent, we remain confident that postal votes handed to us on time will be delivered prior to polling day.

“Where specific concerns have been raised, we have investigated and confirmed ballot packs are being delivered as soon as they arrive in our network.

“We would welcome a review into the timetable for future elections with all stakeholders to ensure that the system for printing and administering postal votes before they are handed to Royal Mail works as smoothly as possible.”

Speaking to The Telegraph on Monday, Luke Graham, the Tory candidate in Perth and Kinross-shire, said more than 20 voters had told him they had not received their papers before going on holiday.

In 2017, the SNP won the seat with a majority 21.

Last week, a Survation poll for The Herald and Ballot Box Scotland suggested around 15 of Scotland’s 57 constituencies were on a knife edge, where the result could go either way with a swing of 2% or less.

In other election news, party leaders will spend today urging voters to turn out tomorrow.

Mr Swinney will use a speech on Wednesday evening to say that while the election in England is a “foregone conclusion”, results in Scotland are “on a knife edge”.

“There are seats that could be decided by only a handful of votes,” he is expected to say.

“Be certain about one thing – your vote will matter. It could make all the difference.

“The election in Scotland is the only place where there are genuine, competing visions of the future at stake – a real contest of ideas and values."

Scottish Labour leader Anas Sarwar said the election was not a forgone conclusion.

“Imagine waking up on Friday to the news of five more years under the Tories – the same sleazy Tories that put party before country, crashed the economy and left ordinary families to pick up the bill.

“But with a simple cross in a box on Thursday, Scots can end the Tory nightmare and deliver a transformative Labour government with Scotland at its heart."

“This election is a straight choice between a broken status quo with two bad governments, or change with Labour," he added.