Legal Beagle by Graeme Edgeler

Having spent last evening at an election results watching party, where I got to explain to bunch of politically-savvy people, who figured they'd have known if anyone, exactly why we won't get to know the final result on the referendum until December 10, I thought I'd go through it here.

The Electoral Act 1993 governs the counting of votes in a general election, and it requires that on polling day, all the advance votes are counted, and all the votes cast on polling day are counted and a provisional result is announced. They don't count special votes, and they don't do the checking to ensure that no-one voted twice, but they give everyone a pretty good idea about the result.

The Electoral Referendum Act is different: it required local returning officers to count the advance votes (which they can start counting from 2pm), but forbade them counting normal votes on election day; instead of individual polling places conducting a preliminary count, they must instead send the voting papers to the returning officer before they are counted at all. The Act requires that each returning officer count the referendum votes "As soon as practicable after the parcels of referendum voting papers are received by a returning officer."

I'm not entirely sure what that means, because despite advice from the Electoral Commission that they won't be releasing any results until the final official count, I don't see that it prohibits them from releasing a preliminary count of the ordinary votes in the days after polling day. A final result - waiting for overseas votes to reach New Zealand and the like - will take as long as the parliamentary elections, but it seems pretty practicable to me to count the ordinary referendum votes in the next few days.

The count of referendum votes is a lot easier than the count of general election ballots: the usual protections of traceable ballot papers weren't imposed, so even if someone double-voted, all their referendum votes will count, because there's no way of finding the ballots they cast. Even the protection of scrutineers was dispensed with, and with the requirement to get the votes to the local returning officer pretty quickly, there's seems to be no reason after the "as soon as practicable" count is completed, why a fuller preliminary count couldn't be released. The law may not require it, but it doesn't ban it, and the principle of open government, and transparent elections, seems like an excellent starting point.

A final note about special votes: it has been pointed out in comments in other places, but bears repeating, that the numbers of special votes listed for each electorate are the number of special votes cast in that electorate. These may be special votes from people who aren't on the printed electoral roll (because they're on the unpublished one, or they enrolled after the rolls were closed for printing), but they also include votes cast within that electorate in respect of another electorate. In an electorate like Auckland Central, which has a lot of special votes, many will have been cast from people in neighbouring electorates who found it more convenient to vote while in the city on Saturday.

We have a provisional result, and now await the official result after special votes are counted. Special votes are:

• those cast overseas;
• those case on polling day by people voting outside their electorate;
• those cast by people who enrolled after the printed electoral roll was closed;
• those cast by people on the unpublished roll; and
• those cast by people who think they're on the roll, but aren't (these votes don't count).

The final result is due on December 10.

I have no particular reason to believe that the effect of special votes will, at this election, mirror the effect in the 2008 election. Indeed, there are a number of factors in play which suggest they won't be: not least temporary dislocation caused by the Canterbury Earthquakes. That said, using an exceedingly rudimentary method,* based solely on how special votes broke in 2008, along with the Electoral Commission's estimate of the number of special votes at this election, I predict the following final result:

The sole change, based on these assumptions, is a gain of one by the Green Party at the expense of the National Party. If the projection holds, it would be Mojo Mathers in as the 14th Green MP, and National's 60th MP, Aaron Gilmore, out of Parliament after one term (at least until the first National list resignation). One-term MP Paul Quinn currently holds the coveted "Judith Tizard" spot on National's list.

Finally (and somewhat related to this post about special votes), I have heard suggestions of a turnout as low as 65%. I believe this was based on quick estimate that ignored the special votes. The Electoral Commission estimates turnout at 73.83%, better, but still well down on the 79.46% turnout in 2008.

*I took the 2008 preliminary results and 2008 final results, calculating the change in each party's votes between the two counts, and then corrected for the differing sizes of the special votes between 2008 and 2011, multiplying this proportion by the preliminary count. Mana is assumed to break the way the Māori Party did, and the Conservatives are presumed to break the same way as the Kiwi Party did (although this cannot affect the make-up of Parliament).

Update by request: The Christchurch Central race was tied on the preliminary count, so the special votes will prove decisive here: there will be no change to the overall party strength whatever the result, and if National's Nicky Wagner wins, no change to personnel either. However, if Brendan Burns wins, Raymond Huo will be gone.

The New Zealand House of Representatives, had the election been conducted with no threshold: 

The "Government"

National - 57
ACT - 1
United Future - 1

The Opposition?

Labour - 33
The Greens - 13
New Zealand First - 8
Mana - 1

On the Cross-Benches?

Aoteroa Legalise Cannabis - 1
The Conservatives - 3
The Maori Party - 3

A very different result.

It doesn't matter whom you vote for, as long as you vote.

This is possibly the biggest mis-statement of all.

If it didn't matter whom you voted for, voting would be a waste of time.

You may only be one voice among many, and in all likelihood not one result will hinge on one vote, but your vote still matters a great deal.

A final reminder about the referendum, because it doesn't seem to have sunk in everywhere (I must have answered the same question on half a dozen facebook threads in the last day or so):

Everyone has the option of voting in both part A and part B.

You don't have to if you don't want to, but you can. Even if you spoil one of the votes, the other one can still count.

And if you choose to vote in part B, please vote honestly, not tactically. There are a whole bunch of things that could happen over the next three years that may mean that whatever comes top could win in a referendum run-off: the world economy could tank, whoever is in government might do something that annoys everyone, or people might find they just really hate politicians, and decide to vote for change. Nothing is guaranteed, and any system could win, so you should do what you can to make it one you'd be okay with.

And finally, enjoy democracy. It's pretty cool.

After my last post, where listed a few of the instances of National and Labour conspiring to make election laws in their favour, I recalled, if not the biggest (*cough* broadcasting allocation), then certainly the most offensive. I'm not sure that it clearly falls within the ambit of the possible Electoral Commission review of MMP, but I intend to include it in my submission anyway. I've decided to call it the New Zealand election tax, and it's a tax National and Labour don't have to pay at all, while the more minor a party is, the higher its bill.

While it's free to register a political party in New Zealand, that's not to say it doesn't cost: the Electoral Commission doesn't charge you, but arranging for membership forms, and hiring the auditor every registered political party has to have, and all the other administrative costs probably add up. And for the parties trying to make into Parliament from the outside, and without major backers, or parliamentary staffers (or travel) to rely on, the personal costs must rack up.

But while it's officially free to register, it's not free to run. Nominating a list, or a candidate, comes at a cost. A $300 deposit is required for each candidate, and $1000 is required to nominate a party list. This in itself is a little unsettling, but worse is that this is a cost borne exclusively by minor parties. This isn't a fee, it's a deposit, and if, as a candidate, you get 5% of the electorate vote, or as a party, you win an electorate or 0.5% of the nationwide party vote, you get the money back. Which means that biggest parties, with the most money - National and Labour - don't have to pay anything to nominate candidates and run for election, but that the smaller parties in Parliament have to cough up thousands of dollars, and parties outside Parliament trying to enter the scene, pay 'election taxes' of perhaps $15k-$20k. That's not chump change for a party being run on membership fees and raffles, and it's money they don't get to spend is raising awareness of their and policies (and candidates!).

Given the inbuilt advantages of incumbency: the massively higher amounts of public broadcasting funding, and the even larger sums spent through Ministerial Services and the Parliament Service, invoicing parties trying to break in from the outside, when the parties with all the advantages don't have to pay up at all (or have to pay much less), is wrong. If it was a nomination fee paid that had to be paid by everyone, it's effect would still be most keenly felt by those on the outside, and would be bad enough, but only charging those on the outer is wrong, and there has to be a better way.

I like to think I've thought of one (though I'm open to alternatives). While I can accept that there needs to be some way of ensuring that the ballot paper isn't filled with candidates running as a joke, taxing the candidates whose parties are perhaps focusing on the party vote cannot be the best way of avoiding this. Instead, I propose that, to be nominated, a candidate should have the option of paying non-refundable fee (perhaps $500?), or should be able to have their nomination 'seconded' by a largish number of people on the electoral roll for the seat they are seeking to be nominated in (50? 60? 80? 100?). I like to think candidates, even for financially well-off parties, would welcome the opportunity of proving their local support, and it might encourage those running for minor parties to seek more members and greater community involvement. As ever, I'm open to other suggestions, but I do think that the minor party election tax we currently operate is profoundly anti-democratic, and every bit as much of a rort as the broadcasting allocation which prohibits every party other than National and Labour from even approaching a level playing field.