Legal Beagle by Graeme Edgeler

David Farrar is outraged over Labour's announcement that if MMP is retained in the Referendum, they will ignore the independent review, ignore the public submission process, and vote to amend the law in a way to disadvantage its ACT party opponents.

I'm pretty disappointed as well. Radio New Zealand quotes Goff as saying:

"People see a system being rorted - but my advice is that if we vote for MMP, then it will be reviewed.

"If there's a Labour Government, we'll take that rort out the system. You'll have to get five percent to get more seats than simply the electorate seat that you win - that stops the rort."

Mr Goff says people do not want ACT back in Parliament.

As any number of Kiwiblog commentators will point out, Labour didn't exactly try hard to take Sydenham/Wigram off Jim Anderton, presumably at least somewhat in the hope that he might be able to lessen the wasted left vote (as for example he did from 2002-2005, with fellow Progressive MP Matt Robson).

But even that's not really the point. I want there to be a debate about the electorate seat lifeline, and I want there to be a debate about whether we should have a threshold as high as 5% (or have one at all), and Labour has just announced that it's not going to engage on these matters at all.

It's also pretty good evidence for what Jordan Williams of Vote for Change has been saying for quite some time: it's the politicians who will ultimately decide what a remade MMP will look like, not any independent experts. And so far, it isn't looking good. Of course, it's the politicians who would ultimately decide what, for example, a new Supplementary Member system would look like as well, but that doesn't make Labour's decision to ignore public submissions on an MMP review in order to advance its own partisan interest any more palatable.

But my disappointment aside, I'm interested in some of David Farrar's analysis. He argues:

Readers will recall Labour’s Electoral Finance Act, and how they rammed it through Parliament despite massive opposition. This shattered decades of rough bipartisan consensus that significant electoral law changes should be decided by either the public, or with support from (at least) both major parties. The Electoral Act is not meant to be the ultimate prize for the winner, where they get to rewrite the rules in their favour.

...

By announcing unilaterally what would happen if Labour is in Government, Phil Goff has shattered the hard won agreement Simon Power achieved that significant electoral law changes should have bipartisan support. Goff has shown that if Labour forms Government, they will make partisan changes to the Electoral Act, to help Labour retain power. They have learnt nothing from the Electoral Finance Act.

I will begin by noting that while I was incredibly annoyed with the process used to enact the Electoral Finance Act, to state that it was "rammed" through Parliament is to overstate matters. Talking of "ramming" something through Parliament usually connotes urgency, or a shortened select committee process, or some other mechanism to speed up legislation beyond the ordinary course. None of this happened with the Electoral Finance Act. It went throught a pretty ordinary process, and while there was trenchant opposition,  it was heard and largely ignored, not rode roughshod over via some parliamentary manoeuvre.

But onto the more important claims: that the Electoral Finance Act shattered decades of bipartisan consensus that significant electoral change should be made with support from at least the major parties; and that National and Simon Power worked hard to restore this consensus. Does the weight of history back these claims? The evidence is shaky at best.

Starting with the second claim: it's true that the Electoral Referendum Bill and the Electoral Amendment (Finance Reform and Advance Voting) Amendment Bill (which re-enacts much of the Electoral Finance Act, although with higher amounts and shorter times) passed with substantial support from parties in Parliament. Which was nice, but it wasn't the only electoral law that went through the last Parliament.

So what was the last piece of electoral law enacted following substantial parliamentary opposition? Well that would be the Electoral (Disqualification of Sentenced Prisoners) Amendment Act, which received the Royal assent on 15 December 2010. And when did the House pass the Electoral (Finance Reform and Advance Voting) and Electoral Referendum Bills? 15 December 2010. That's a rather short-lived period of hard-won agreement on electoral law consensus.

David may like to quibble that adopting a piece of law intended to disenfranchise thousands of people typically considered unlikely to vote for your party is other than a significant piece of electoral law, if so, we'll disagree. The opposition was substantial: the only submissions in favour of the bill were from its parliamentary sponsor, Paul Quinn, and David himself. I don't put a great deal of weight on such numbers, so the debate on the third reading is more telling: the only party actually in support of the legislation was National, with Hillary Calvert (in)famously noting her opposition to the legislation before ACT joined with National in voting in favour.

And this wasn't a one-off: National also abandoned the pursuit of consensus in respect of the local electoral law aspects of the legislation dealing with the Auckland Super City, ignoring a protest march about as large as the one John Boscawen organised against the Electoral Finance Bill.

This isn't to say that the National government was wrong with either policy, but for a party that supposedly fought hard to gain agreement that there should be broad (or at least bi-partisan) agreement on our electoral laws, they've show a significant lack of respect for that supposed convention even very recently.

But how about the other claim: that there was a decades-long consensus on bi-partisan electoral law prior to the Electoral Finance Act. Prior to the Electoral Finance Act, the last Labour Government also passed: controversial validating legislation in relation to election spending; constitutionally-dodgy legislation avoiding the need for a by-election as a result of a forced vacancy in Harry Duynhoven's seat of New Plymouth; legislation setting up Maori seats in the Bay of Plenty regional council, and providing a process for other councils to set them up as well; one successful attempt at passing party hopping legislation, and one unsuccessful attempt at renewing it; providing for single transferable vote for health board elections.

This doesn't refute DPF's secondary point: that National isn't as bad as Labour, but we shouldn't forget that during the last Labour government National, under Don Brash, adopted a policy of abolishing the Maori seats (with or without agreement), and John Key went into the last election with a similar policy, albeit with a delayed start date. We can go further back into the "decades" David talked about to see a range of partisan changes to our Electoral laws.  The "country quota" that meant that rural electorates could have lower voting populations than city electorates is going back too far, but the change from using voting age population to total population in drawing the boundaries was, I'm lead to believe, originally used to the same end (rural families tending to be larger than average).

After Labour reformed the Maori seats in 1970s (allowing Maori to choose between the Maori roll and the general roll for the first time, and placing the Maori seats on the same footing as the general seats in terms of size, allowing their number to rise or fall with enrolment), the Muldoon government passed a law, the sole purpose of which was to again artificially limit the then Labour-strongholds of the Maori seats to four, (.pdf) irrespective of the number of people represented through the Maori seats.

While not inconsistent with David's view of a bi-partisan electoral law, we shouldn't ignore National and Labour's joint attempts to tilt the system in their favour by, for example: having government and opposition members on the Representation Commission nominated by the Prime Minister and the Leader of the Opposition; setting up broadcasting rules massively favouring themselves, including in one instance, combining to ensure a newly-formed New Zealand First couldn't advertise on radio and TV at all; and increasing the party vote threshold to 5% from the 4% recommended by the Royal Commission.

I would like the parties in Parliament, and National and Labour in particular, to refrain from amending electoral law out of partisan interest. I would like them to seek consensus in important constitutional legislation, including electoral laws dealing with all manner of things. It seems that, for the most part (disenfranchising sectors of the community excluded), David agrees. But just because that's what we'd like to happen doesn't mean it a regular or recent occurrence, as both National and Labour have shown repeatedly over recent years, with repeated support for, and opposition to, electoral laws with clear partisan agenda.

But back to Phil Goff. Stuff also carries the story:

Labour leader Phil Goff is calling for a law change to stop minor parties "smuggling" in MPs when they're "not entitled".

After campaigning in the Otara market this morning, Goff responded to questions from the media about the "cup of tea" meeting between National leader John Key and Act's Epsom candidate John Banks.

The meeting was designed to encourage National supporters in the electorate to split their vote and support Banks to win the electorate. Banks would likely bring at least one or two additional Act MPs in to Parliament, even if it does not reach the five per cent threshold.

Goff today said that was "a rort".

"This is a way to get a party back in to Parliament that New Zealanders don't want there and John Key's allowing that - in fact, he's not just allowing it, he's making it happen," Goff said.

Key can't make it happen. That's up to the voters of Epsom, and as one of those, Key has announced he's doing what he can to ensure it doesn't happen. He's got one vote, just like everyone else, and it's going to Paul Goldsmith.

"Frankly, I think the law needs to be changed to stop this kind of gerrymander. You either get in because you've got an electorate seat or you get in with list MPs if you get over five per cent.

"But this idea that one party like National can gift you a seat so you can smuggle three or four members of parliament in when you're not entitled to, that's wrong. They know it and New Zealanders know it."

The single seat rule does not gift a party seats it is not entitled to, it ensures that it gets the seats its party vote would entitle it, but for the artificial 5% threshold. If ACT gets four list MPs, it will be because 85,000 or so so New Zealand voters wanted them to have four list MPs, and National and John Key have no say in the matters.

Key dismissed Goff's call for a law changes, saying: "I don't take a lot of what he says seriously."

"That would be a scrapping of MMP," he said, while campaigning in Palmerston North today. "If he's proposing to get rid of MMP, he's welcome to vote it out in the referendum.

"But by definition, you have the situation where the rules are if you have an MP, you bring in all of your vote. If you don't have an electorate vote, then you've got to get above the five per cent thresh-hold. If he says that no longer works, well that's quite a radical change to MMP.''

This is Phil Goff's saving grace. Key's comments are utterly nonsensical. Abolishing the electorate seat exception is not "a scrapping of MMP". Key might recall that not all that long ago, his government set up a process whereby the MMP system may be reviewed after a referendum, and one of the things that review must consider is whether we should keep the electorate seat exception.

MMP does not "by definition" require that where a party has an MP, you bring in all your vote. Other countries with MMP have systems where this isn't the case. And Phil Goff hasn't proposed abolishing electorates, which is the only way one can read Key's comments as possibly making any sense at all.

Such a change would not be a major one. It would be pretty easy to adopt, and the system we'd be left with would still clearly be MMP. I really have no idea what John Key is talking about, but I'm pretty sure he's wrong.

I will end by noting that this piece perhaps doesn't exhibit the tone I've generally adopted in my fact check pieces. If Phil Goff has been misquoted, I will happily retract my criticisms, but if the media reports are accurate, harsh criticism is well-deserved.

Gordon Campbell has published a column that falls into a trap to which many others have succumbed during the referendum campaign: assuming he remembers what the Royal Commission on the Electoral System said, without actually checking. His column argues:

The voting referendum is really a contest between the only systems that the public know first hand: MMP, and the old FPP system. In a pure head to head contest, FPP would fail. To give it a helping hand, National candidates have been either explicitly endorsing or dog whistling for SM as a moderate, middle ground alternative. It is no such thing, of course. SM contains only a pathetically token trace of proportionality and entrenches big party power. (The Royal Commission dismissed it with disdain as barely any improvement at all on FPP.)

(Emphasis mine)

The Royal Commission did reject Supplementary Member, and they did consider that MMP was superior, but to declare that it "dismissed it with disdain", or that it view SM "as barely any improvement at all on FPP" is a massive overstatement (as is the claim, formerly made elsewhere, that "SM was roundly rejected by the Royal Commission").

Chapter 2 of the Report of the Royal Commission on the Electoral System was devoted to considering which voting system we used, and it considered (mostly briefly) a range of voting systems: First Past the Post, At-large voting, Points Voting, Limited Vote, Single Non-Transferable Vote, Cumulative Vote, Second Ballot, Alternative Vote, Approval Voting, First Past the Post with supplementary seats, Supplementary Member, Party List, Single Transferable Vote, and Mixed Member Proportional.

It rejected most of these quickly, but its assessment of the Criteria for Judging Voting Systems it formulated determined that three alternatives to first past the post were worthy of in-depth consideration: MMP, STV and SM. And about supplementary member, it noted in introducing it that:

2.81 There is, however, a more promising scheme which we have called the Supplementary Member (SM) system…

2.83 SM is a serious and considered attempt to improve our present system…

And concluded:

2.114 The Commission recognises that SM has considerable appeal. It improves on the plurality system in a number of ways. First, it would give representation to significant minor parties. Second, because almost all the list votes would count towards the election of candidates, electors in safe seats would have a more effective rol than under the present system. Third, it would enable the parties, particular major ones, to protect a limited number of particularly able members in marginal seats. Fourth, it would provide a way of increasing the number of MPs but avoid the disruption to constituency boundaries that would be caused by a significant number of single-member constituencies. Fifth, it would, because of the list, be likely to enhance the representation of Maori voters as well as voters belonging to other special interest or minority groups. Sixth, it would lessen somewhat the disproportionality between the major parties.

Even in weighing up SM's negatives, it was reluctant to fully rule it out:

2.115 Nevertheless, the Commission is of the view that SM does not go far enough in meeting the fundamental objection to the plurality system in respect of the relationship between seats and votes. Those objections would still be powerful under SM, even though the minor parties might be somewhat better off. We are reluctant to rule out SM altogether, however, until we have seen whether MMP or STV can overcome the objection to both plurality and to SM without introducing too many disadvantages of their own.

In contrasting SM with the proportional STV and MMP systems the Royal Commission concludes:

2.179 … With regard to SM, we are conscious that a complete move away from plurality represents a major change and that there might be attractions in making lesser modifications to our system aimed at remedying some of its defects in a more gradual and incremental manner. However, we do not consider SM sufficiently overcomes the key deficiencies of plurality. In terms of fair representation of the supporters of political parties and other groups and interests, it is a palliative rather than a true prescription for improvement.

This is clearly a rejection of supplementary member, but it is no disdainful dismissal. Rather, SM was viewed by the Royal Commission as a serious and considered attempt to improve first past the post which held considerable appeal, but which did not go far enough in meeting the fundamental objections to first past the post in respect of the relationship between seats and votes. Not quite as easy to put on a billboard, but if you're going to invoke the Royal Commission as supporting your argument, worth checking and getting right.

Radio New Zealand’s Afternoons with Jim Mora discussed the voting system referendum on both Monday (.mp3) and Tuesday (.mp3) this week, with Vote for Change’s spokesperson Jordan Williams a guest of the panel on both occasions.

We start on Monday, with panellist Gordon McLauchlan (GM): At one stage Social Credit had 20 per cent of the vote and no members of the House, and those sort of aberrations have continued a lot since then.

Social Credit received 20% or more of the vote in one election: 1981. And following that election, it had two members of Parliament. First past the post does substantially under-represent smaller parties, but it has never been quite that distorted in New Zealand.

GM: The thing is this, MMP to me, is seriously flawed in a couple of places, but not beyond repair, I think it could be quite rapidly repaired … and all the others are kind of shavings, they’re not one thing or the other, the other alternative voting systems.

Of the concerns that can be raised about first past the post (FPP) and preferential vote (PV), that they are muddled and trying to be both one thing and another is not one. They are both systems that make very clear choices: voting systems that favour clear geographic representation over demographic representation and proportionality. Whether the values expressed by such a choice align with yours is one matter, but the values are abundantly clear.

And we now move to his co-panellist Matt Nippert (MN): The biggest change MMP has brought has not been in how we vote the number of boxes but it’s sort of in the political culture which now means government cannot railroad through; it’s not quite all airy fairy sitting ‘round a room and everyone agrees consensus, but you generally need 51% of the House to get anything done.

MMP has lowered the ability of governments to railroad law through Parliament, but to suggest they cannot do it under MMP is a gross overstatement (as The Urgency Project has shown). Also, while you needed more than 50% of the House to get something done under first past the post, more importantly, the implication that a government needs support from more that 50% of voters under MMP is false. MMPs is far better than FPP at ensuring that a Parliamentary majority is supported by a majority of voters, but, for example, the 1996 election saw a National/New Zealand First coalition with 61 seats out of 120, while the combined support the parties received in the election was 47.22%. And following the 2008 election, National with ACT had 63 seats out of 122: a parliamentary majority, but with only 48.58% of the vote between them.

GM: The Australian one interests me, because I understand that Gillard is only there because of their voting system and the way it worked, but very few Australian elections are influenced by their system; over the years, it doesn’t matter an awful lot.

I’m not prepared to call this one false, because I haven’t the inclination to do the number going back years, but it strikes me as highly like that were voting patterns to have remained the same, but with Australia using first past the post, Labour would do a lot better. The fractured vote between the coalition of the Liberals and the National Party (and all the variations of "The Coalition") would like see Labour ‘come through the middle’ in a lot of seats, winning with the most votes, while opposed by more than half the electorate.

MN: This is the preferential, which we actually have for the health boards here. It is awful if you have to number 20 candidates that you don’t even know one of them, and having to number them in order it all gets rather silly towards the end.

We use single transferable vote for health boards, not preferential vote (voting is similar in the two systems, but STV has multi-member electorates and PV has single-member electorates). And under the STV system we use for health boards, voters do not “have to number” all the candidates. Australia requires voters in their PV-elected lower house to number everyone, it is very very unlikely that we would do that for either PV or STV.

Jim Mora (JM): If the country goes for MMP again, do you have faith that you – the voter – will be able to fine tune it in the way you want?

GM: I think that most people who are involved in it realise its shortcomings; I think most of them realise that a single seat MP should not take a host of other members with him. I think a lot of people would sooner see the level perhaps lifted to 7 ~ 7.5% or something like that.

MN: Or reduce it altogether.

GM: Yeah.

JM: So you have faith that between them, after public submissions, that the politicians in concert with the Electoral Commission will make the right choices?

GM: Yeah.

As Jordan Williams points out later, it’s difficult to have confidence that parliament will fix MMP in the way you want, when you note that it could either increase the threshold, decrease it, or abolish it altogether.

Jordan Williams (JW): So if you wanted MMP improved, surely you should keep the option there, so the politicians have a real incentive to change it?

That’s an argument, but it really only flies if the alternative to be put against MMP in a possible 2014 referendum is one that the majority of MPs in the next Parliament will prefer MMP over. If they’d prefer alternative system, they’ll have no incentive to get MMP right at all.

JW: It’s interesting the amount of people I’m hearing during this campaign saying “we could improve MMP”, but there’s seem to be no consensus as to exactly how you would improve it. For example the threshold point: I’m not hearing a particular consensus on whether that 5 per cent should go up [or] down. And of course, secondly, the other main one is the Epsom coat-tailing rule: you’re relying on the National Party Minister of Justice, presumably if National win the election forwarding – assuming it’s a recommendation from the Electoral Commission – pursuing that. Effectively, you’re relying on – if you vote to keep MMP and you want that rule changed – you’re relying on the National Party, effectively, getting rid of ACT.

This is an excellent point: the Electoral Commission review could very easily be ignored by MPs.

I would note, however, that if we’re to place MMP against an alternative system, such as the Vote for Change’s preferred supplementary member, then the politicians will be designing what that looks like as well (and there won’t be a public process before to make recommendations about the details).

Even if people hate the “one seat rule”, we could be having a second referendum which pits an MMP system with a one seat rule, against a supplementary member system which has a one seat rule. If voters want real influence over the review and design of electoral systems, they’re going to have cast not just their referendum votes accordingly, but their election votes as well (at this election and the next).

GM: Hopefully, the politicians – and I think there’s been talk of it – will give it back to the original panel that came up with the MMP format, and they are, I understand full aware, they can rationale where they, why they think they made the mistakes they did.

If there’s been talk of sending it back to the Royal Commission members, then this is the first I’ve heard of it. In any event, one member of the Royal Commission is dead, one is now a Judge of the International Court of Justice, and some of them are now rather old. The Electoral Referendum Act is also abundantly clear that the review will be conducted by the Electoral Commission.

JW: Well, let’s go back to that, because that’s a very good model when MMP came in, you had an expert panel that came up with recommendations, and some of those, sorry most of those recommendations were picked up by the politicians, but they were put to the public. The farce of this referendum is that the politicians have said “vote to keep MMP or vote for change, and if you vote for keep, trust us, we’ll have the final say and tweak MMP.” It’s pretty outrageous. Whereas if you vote to change, we argue that that review should happen anyway – and that’s the Labour Party principled position – and put those improvements, or those adjustments to MMP to the people.

The Royal Commission on the Electoral System made 71 numbered recommendations. Rejected were: 1, 2, 9, 10, 18, 21(b), 22, 23, 24, 26, 27, 29, 31, 33, 34, 35, 37, 38, 39, 40, 41, 42 (it was adopted, but has been undone), 44 (in part), 48, 56 (recently changed), 57, 60 (b) & (c) & (d), 62(a) (but soon) & (b) & (c), 64, 65, 66, 70 (a) (part) & (e), and 71. And some of the other ones relating to the operation of the Department of Statistics about which I don’t have sufficient knowledge may have been rejected too.

On a quick count, this is around 30. So Jordan was right overall, but when we look at the recommendations about the details of MMP (which is simply recommendation 1!), there was substantial change: the Royal Commission recommended an MMP system with: 60 electorates and 60 list seats; 15 electorates in the South Island; a requirement to take account of Māori tribal areas when drawing general electorates; a single electorate quota; a 10% tolerance; no separate Māori seats, Māori roll, or Māori option; a modified Sainte-Laguë system for apportioning seats; a threshold of 4%; and a threshold waiver for parties representing Māori interests. We don't have any of these. The MMP details we carried through from their recommendations were: a closed list, dual candidacy, two votes, the one-seat rule, and the rules for filling vacant seats.

JW: Democracy works because of the threat of being thrown out of Parliament. The trouble with MMP is you get a second lifeline, and that second lifeline is through the party list, and that unfortunately changes the line of accountability.

And as Jordan no doubt knows well, this concern is also present in his favoured supplementary member system.

Jim returned to the referendum on Tuesday afternoon, this time with David Farrar (DPF) and Liz Bowen-Clewly (LBC).

We start with Jordan Williams (JW): [Under MMP] the proportionality of the whole House is determined by the party vote, which means … if Labour lose Wellington Central, it doesn’t really matter because they merely get another list MP, and we think that’s unfair.

This is a complaint Jordan has raised before, but it struck me the other day that he’s never explained exactly to whom this is unfair. It doesn’t seem unfair to Labour or National voters, who are represented in Parliament according to their voter support. And it doesn’t seem unfair to the voters of Wellington Central, who are represented by the local MP they chose. Is there anyone else to whom it could be unfair?

DPF: Jordan, can I ask you why your organisation went for SM rather than STV? Because one of the things I hear from a lot of New Zealanders is they really don’t like the concept of list MPs, and STV is a system where there’s no list MPs. Everyone’s directly elected from the public, but it’s still roughly proportional which people seem to quite like too.

JW: Two reasons. One is that STV is the most complex of all of the systems.

DPF: To count…

JW: It’s important that you understand that the general population understand how a voting system works. Working up and down the country, and talking to various public meetings, the most difficult one understand, by far, is single transferable vote. The second reason why STV is difficult … is that because you have multiple members – between three and seven MPs per electorate – is the electorates are huge. Secondly, STV is generally applied when you have state borders, or clear borders in a country, and in New Zealand, we don’t have that.

LBC: But Ireland have STV and they don’t have state borders.

JW: But again, Ireland is far smaller in area than New Zealand.

This is just a good discussion. DPF asks the question I want asked of everyone who is stumping for one system or another ('why not this other system?'), and gets a reasoned, considered response.

I would note, however, that STV is principally used in countries that don’t have states, or clear internal borders (although use in such places can be less problematic when considering the possibility for gerrymandering electorate boundaries.

JM: If we go back to a system that gives a result based on electorates, like FPP, SM and PV, the number of MPs will slowly but inexorably rise to beyond the 120 figure, and MMP actually prevents this happening, because the number of electorates is allowed to increase if necessary to adjust to the population.

JW: Ah, no. It’s generally accepted that MMP is the only system that requires 120 MPs. All of the other systems could easily work with 99 or 100. The trouble with MMP is that as the number of electorates increase – and that’s because the South Island is guaranteed … 16 electorates, as that as a proportion of New Zealand the South Island gets proportionally smaller, the number of electorates increases. There comes a point where because MMP, the party vote applies to the proportion of the whole parliament, and electorates are generally a bit more decisive than the party vote in order of awarding the winner, it means that as you increase the number of electorates, the number of MPs will need to increase as well. So it’s actually the opposite. MMP requires more MPs than the other systems, because all the other systems, the electorates are smaller, except STV, obviously.

JM: Yeah, I know what you’re saying.

If Jordan is going to claim a “general acceptance” that MMP is the only one of the five systems that requires 120 MPs, I’d welcome his pointing to evidence. The Royal Commission, for example, considered that we should have 120 MPs irrespective of the system we adopted. MMP could also work with fewer than 120 MPs, although that would increase the change of overhang. However, given that the Vote for Change are too concerned about there being a little less proportionality, I’m not sure why that would concern him. He’s right that, in order to have a good change of maintaining proportionality without having too great an overhang, the number of MPs may have to increase, but there are other options: we could decrease the number of MPs in the South Island (the Royal Commission recommended 15, not 16), if an larger Parliament was that much of a concern.

However, as Parliament has expressly states that all the systems will have 120 MPs, and that there will continue to be a fixed number of seats in the South Island under all systems, if population growth continues as it has, all of the systems based on electorate MPs (and that includes) FPP, PV, STV, and SM (if the list is fixed at 30) will see an increase in the size of Parliament over time.

We set the number of MPs under first past the post at 80, but by the time we abandoned first past the post, it had increased to 99.

LBC: Basically, the majority of people who are list MPs, are people who’ve been chucked out by the voting population, and now are there … for life, and they don’t have to answer to the electorate at all.

It is certainly the case that most list MPs have lost electorate contests, but to say that they've been "chucked out" is a gross overstatement. The vast majority of list MPs have never been "chucked out" of an electorate seat. The number of list MPs who come in via the list lifeline after losing electorates seats they previously held is only a small proportion, and far from being there for life, many retire by the following election.

The following is an advertisement publicly released today by the Vote for Change group:

Seriously, how hard is this to get right?

It contains an error that has been repeated throughout the campaign. In this instance, however, it appears not to be a mistake, so much as a deliberate vote suppression tactic. The graphic clearly implies that people who vote to "keep MMP" do not also get to vote on which system they'd like MMP to face off against if it comes to a second referendum.

Given I pointed this out to Vote for Change before this was released to the wider public, I can only assume a deliberate choice was made to leave it as is, perhaps to increase the likelihood that people who want a say in the second question will vote for change in the first despite it not being their real preference, or out of fear of invalidating their vote.

This is something I am going to repeat as often as is needed.

Everyone who votes in the referendum gets to vote in both questions if they want to. They can also choose to vote in one and not the other without it invalidating their whole vote. And even if they cast an invalid vote in one part, as long as the vote in the other part is okay, it will still count.

Jordan Williams, the spokesperson for Vote for Change, states that the advertisement was not an intended to be independent, and was designed to promotes change to the supplementary member system. Vote for Change considers that the only way to get an improved voting system is to tick change.

For me, that isn't good enough. An advertisement can promote change without falsely implying that voters must tick change in order to vote in the second question. And it could have easily have avoided creating that impression by either having a greyed out arrow from keep MMP to the other options, or by only having the purple arrow and not having greyed out arrows at all.

UPDATE: Vote for Change have updated their referendum decision tree, meeting my objection, and have also added an additional footnote explaining that any change to the number of MPs will not come through the referendum, but through the separate constitutional review.

Nigel Roberts has talked about how there were two things he wanted to see under an MMP Parliament: a government losing a confidence vote in the House, and a party causing overhang. He hasn’t (yet) gotten the former, but the Māori Party caused an overhang in both 2005 and 2008 (the beneficiaries of the overhang were National and Labour in 2005, and National and the Greens in 2008).

I’m not sure whether overhang was something he always wanted (I suspect so), or whether it arose out of his experience, but he has said that one of the questions he frequently got asked after explaining our MMP system to foreigners (I assume with a particular interest in politics) was “what if a party wins more electorates than it’s party vote would entitle it to?” The answer, in New Zealand, is overhang, which he then told them about finally got to see.

But overhang is now well-known, and the frequently asked questions are answered elsewhere and by other people.

I bring you some of the infrequently asked questions:

Why doesn’t National/Labour split into two parties – one that only contests the party vote, and one that only contests the electorate vote, causing a deliberate overhang and enough disproportionality to win an election despite losing?

Because this isn’t Italy, and voters would punish them for it. I’d never vote for them again. I’d encourage everyone else to make the same promise. Second, if it did work without annoying everyone, then the other parties would do it at the next election and we’d basically get supplementary member. And finally, while it would cause disproportionality, it wouldn’t actually cause overhang (I’ll get to that later).

Well, how would you surreptitiously distort an election?

Nominations having closed, I don’t feel too bad announcing this one more broadly now.

My favoured method involves getting a terminally ill person (perhaps more than one, just to be “safe”), to run in the anchor electorate of a sub-5% party (e.g. Epsom). If an electorate candidate (even an independent) dies between the close of nominations, and the close of voting, the election for that electorate is cancelled (resulting in a by-election), and only the party votes count. That seat couldn’t then be used to get that party (e.g. ACT) into parliament by avoiding the 5% threshold, potentially swinging a close election. And as that person doesn’t need to have any formal affiliation to a party (they might claim to be doing it as a stunt to raise awareness about some aspect of the health system), you might be able to get away with it.

This is a rule we really don’t need, and I’m guessing it’s a hangover from first past the post. Which, to be honest, doesn’t need it either. Given that you’re having an election anyway, let people vote, and if the dead candidate wins, then have a by-election.

What happens if one party wins 100% of the party vote?

If a party got 100% of the party vote, it would be entitled to 120 MPs. These MPs would be made up first from any electorates they won, and then from people on the party list who didn't win an electorate. As it is likely that they wouldn't have enough people on their list, there would be an "underhang" and some of the seats in Parliament would go unfilled for three years. Any electorate seat won by a party that was contesting the party vote would stay with that party as an overhang, and any electorate seat won by a party that was not contesting the party vote, or was won by an independent, would reduce the number of seats the 100% party was entitled to by 1.

And if Party A wins 100% of the party vote and Party B wins all of the electorates?

This is an extension of the last question. Party B would get its 70 electorate MPs, but the shape of the House of Representatives would be determined by whether Party B contested the party vote. If it did submit a list, Party A would get 120 list MPs (assuming it had enough people on its list). If it didn’t contest the party vote, Party A would get 50 list MPs. This is because seats won by independents, and MPs representing unregistered parties or parties that don’t nominate lists, are deducted from the overall number of MPs before list seats are allocated.

What happens if no party wins 5% of the party vote, and all the electorates are won by independents?

There would be no list MPs, only the 70 electorate MPs. This one isn’t even a technical possibility at this election, because there are only 13 parties contesting the party vote.

If a party gets 4% of the vote, and no electorates, but then wins a by-election during the term of Parliament, does it get any list seats?

No. Proportionality is only maintained at the general election itself. By-elections can disrupt proportionality, and have: the 2004 Te Tai Hauaruru by-election saw Labour go down an MP.

If a party gets 4% of the party vote, and wins one electorate, but it’s electorate MP later resigns or dies, does it lose its list seats?

No. This is even the case if the reason the electorate MP lost was because it was proved at an election petition that they stole ballots cast for their opponent, who actually won when they were found and counted.

Seriously? What would happen if some party deliberately stole the election by corrupt practices?

Any MP who was involved could be charged, and if convicted of a corrupt practice, would lose their seat (leading to either a by-election, or their replacement by someone else from the list). It’s possible the Courts would step in: even though the Electoral Act tries to limit the power of the Courts to invalidate a whole election, they might just try anyway. I think the more likely result is that the government’s support parties (assuming it wasn’t a single-party majority), and/or some of it’s non-corrupt MPs would cross the floor and bring the government down, forcing a new election. If the corruption was so serious, it’s possible the Governor-General could dissolve Parliament, whether on the advice of a PM under immense public pressure, or as an exercise of the reserve powers.

Can someone run in more than one electorate?

Not in respect of elections on the same day. You can’t run in two electorates in a general election, or in two by-elections if those by-elections are held on the same day. However an electorate MP can run in the by-election for a different electorate.

What happens if a list MP wins a by-election?

This one may actually be a FAQ rather than an iFAQ, but I’m including it anyway. If a list MP wins a by-election, they become the MP for that electorate. They don’t get two votes in the House, or two salaries. They can be replaced as a list MP for their party by the highest-ranked person on the party list who hasn’t been an MP during the term, if they resign. This hasn’t yet happened, and there are different interpretations. I’m of the opinion that the resignation would have to happen before the writ for the by-election was officially returned, but I understand that the Chief Electoral Officer is of the view that it that isn’t necessary. If they don’t resign, they’re not replaced as a list MP. If they don’t resign at the time, but then die a year later, I have no idea whether they get replaced once as a list MP and once through a by-election, or just through a by-election, the Electoral Act isn’t especially clear on this point.

What happens if the sole electorate MP for a sub-5% party dies or resigns?

There is a by-election in the electorate, but the party gets to keep its list seats. Again, this happens even if the vacancy occurs because of a corrupt practice.

What happens if an electorate vote is tied?

There is an automatic judicial recount. If the result is still tied after any recount, then the Electoral Commission determines “by lot” which candidate gets it. In the event that one of those candidates was a possible anchor MP for a sub-5% party, a fair bit could be riding on it.

How about a tie in the list vote?

This only matters for the last spot, but if the Sainte-Laguë quotients for the 120^th position in parliament the Electoral Commission is again responsible for determining the matter by lot. However, it isn’t preceded by an automatic recount of the votes.

What if there’s a tie in the referendum?

No-one is allowed to ask for a judicial recount of the referendum votes, but if there’s a tie, “keep mmp” wins, and the Electoral Commission review of MMP will occur. If change wins, and there’s a tie for the top spot on the second question, well, that bit's non-binding, so it’s up to Parliament to decide what to do.

What if a party misses the deadline for nominations?

This has happened. The intending Green candidate in the Botany by-election was late with their nomination form. It’s not unknown to happen at general elections, although usually not by Parliamentary Parties. The Chief Electoral Officer was sued at the last election for rejecting someone’s nomination (he won).

In 2002, the Libertarianz fronted at the Chief Electoral Office with their list nomination, and the $1000 deposit, not long before nominations closed. Only it was in (I think) cash. Which isn’t acceptable. It has to be a cheque, which was offered, but wasn’t enough, because a personal or party cheque isn’t allowed either. The Electoral Act requires that “The deposit must be in the form of a bank draft or bank cheque”. What is a bank draft? I believe it’s just a bank cheque, but someone might like to chime in with a technical difference.

What would happen if National or Labour stuffed up? If they were in government, they could recommend to the Governor-General to extend the time or validate their nominations. If they were in opposition, they could ask the government to recommend it, but if this didn’t happen, they just couldn’t run. Hilarity would ensue.

Why do the people of Epsom like ACT so much?

They don’t. Indeed, more Epsom voters gave their party vote to the Greens at the last election than gave their party vote to ACT.

How is it that the Conservative Party can afford all those billboards and leaflets, without having to declare a donation of more than $30,000 from wealthy party leader Colin Craig?

I anticipate that he made a donation before the party was registered. This is one of the few instances where “loophole” can be legitimately applied to a law. Someone should ask him anyway.

Feel free to ask your own, and I’ll do the best I can!