Legal Beagle by Graeme Edgeler

The Electoral Commission is ramping up its public information campaign for the referendum on the voting system (just 85 sleeps to go!), and it has a nifty little website, with new and exciting information to help you and other voters decide what voting system is right for you.

You should head over there. It's pretty flash.*

There's a place to directly compare aspects of the systems. And a tool where you can enter your preferences which shows how the various systems stack up.

Like any tool (ours included), it's best used as a guide, but the more information people have, the greater the chance our votes in the referendum will represent what we truly want in a voting system.

Usefully, it's set-up a little differently from the way ours will be, spits out results in a different way, and focuses on some different things, so they'll sit alongside each other nicely. I also have the benefit of not having to be quite so neutral, so your answers will slightly more explicitly: you like that, want those, and hate them? Vote Preferential Vote!

When I've a bit more time, I may go back and look at some of the debate about some of the assumptions: for example, it's just not clear to me that first past the post is the system with the greatest ability to “throw the rascals out”: New Zealand voters tried throwing the government out in 1978, 1981 and 1993 and the first past the post voting system kinda got in their way. 67.6% of those who voted in Ōhariu at the last election tried throwing their local MP out, but the first past the post voting system we use in electorate contests decided otherwise.

But that's a debatable point. On a quick look, it seems in line with accepted thinking, and I can't see anything to fault.

I was hoping to find *something* to fact-check, but the one quiz question I had an issue with during the media presentation yesterday is now fixed, and the other fact-check I was thinking of making resulted in my being fact-checked (I'd have checked before posting, I promise!). About the only thing I can really dispute is their claim that it went live at 10am this morning. It was totally on-line last night :-)

Right here.

* final nerdish pun, I promise.

Parliament has just finished an extended period of urgency. Nothing especially controversial was passed, although the mere fact of urgency is becoming more controversial, and one bill (now known to be the Policing (Storage of Youth Identifying Particulars) Amendment Bill) was so secret that the public couldn't even be told its name in advance.

Another of the bills was the Duties of Statutory Officers (Census and Other Remedial Provisions) Bill. Most importantly, it regularises the cancellation of the census, which the Statistics Act required to be held this year. Interestingly for me, Maurice Williamson, as Minister of Statistics is quoted in the Herald as saying "It also means the Maori Electoral Option and the review of electoral boundaries can still go ahead before the 2014 election."

But it's not clear that he's right. New boundaries will be able to be drawn, but whether Māori will actually get the option to change between electoral rolls that we would ordinarily expect (it usually happens just before the boundaries are drawn) is far from certain.

The holding of a census has a number of effects in the Electoral Act:

• The terms of office of members of the Representation Commission expire on the date of the first periodical census held after they were appointed (at which time new members are (re)appointed).
• The Representation Commission then draws new boundaries which it does “only after each ... periodical census and on no other occasion.”
• The Representation Commission (with slightly different membership) also draws boundaries for the Māori electoral districts which it again does “only after each ... periodical census and on no other occasion.”

No problems there. After each census, which we hold from time to time, new boundaries are drawn. If there isn't a census, we don't draw new boundaries. The next census will just be held (and the new boundaries drawn) a period of seven years after the previous one, rather than the more usual five years.

But there's one other consequence that the holding of a census usually has in the Electoral Act: it triggers the Māori Electoral Option. Section 77 of the Electoral Act requires the Minister of Justice to “in every year that a quinquennial census of population is taken, but in no other year, publish a notice [specifying ... a period of 4 months during which any Maori may exercise the option...].”

Note the difference: boundary determination happens after the periodical census, but the Māori option happens after a quinquennial census. There is a Latin phrase, taught to first year law students, but forgotten by me, which notes a basic rule of statutory interpretation: if Parliament uses a different word, it means a different thing. And even if, in New Zealand, the periodical census is usually the same thing as the quinquennial census, this may be one occasion where they differ.

And you don’t even need that rule. You can just look at the words of the Act and it seems pretty obvious: a Māori option may only be held in the year a quinquennial census is held - will the 2013 Census be a quinquennial census? As it will have been held seven years after the previous census, I don't see how it can, and this implies that no Māori option can occur in 2013.

This could have been put beyond doubt by a simple amendment. First, section 77 of the Electoral Act just shouldn't use the word quinquennial, but even if Parliament didn't want to amend the Electoral Act, they could have put it a simple sentence: “for the avoidance of doubt, the 2013 census is a quinquennial census.”

Now, if someone raises the issue in a couple of years' time, I'm pretty confident we'll just muddle through. Someone will assert that they have legal advice that this is permitted, and everything will be fine. But we shouldn't have to rely on this when a simple amendment could have been inserted by a select committee.

This law needed to pass this year. And I’ve been looking out for it, because when the decision was announced after the Canterbury Earthquake that the census would be cancelled I was like “umm don’t you need to pass a law to do that?”. But given that it was immediately obvious that a law would be needed, and this bit of the law comprises just two sections, it should have been able to be introduced before now, and could have received a short select committee hearing.

Whether I am right – or if I am not – there is no reason the public should have been prevented from having the opportunity of having some input on this bill. Legislating in haste may sometimes be necessary, but it is always a bad idea.

With a little over three months until the election (and the Referendum!), it seems about time to get people thinking about what they want in a voting system, and what voting system on offer comes closest to .

In that regard, I've been working on an on-line tool for Public Address. And I'm at the point where I need some programming assistance. So I'm hoping one of you, or someone one of you can send our way, will be able to help. It's slightly more than your standard "what voting system am I?" Facebook Quiz, but as a piece of progamming, I imagine it'll be pretty basic.

Please contact me (or Russell) if you know your way around a computer and have a few hours to spare the cause of informed public debate. I suspect Russell can even throw in some coffee :-)

p.s. I'm not the only person trying to use the Internet to inform people know about the effects of the different voting systems on offer: Geoffrey Pritchard and Mark Wilson, of the Centre for Mathematical Social Science at the University of Auckland have created a nifty simulator: key in different voting figures, and it will show the final parliament under each of the five systems. I thought of fact-checking it, as there are some assumptions I'd take issue with: they use the party vote, and ignore the electorate vote, which tends to suggest the Maori Party wouldn't have gotten any seats under most other systems at past elections, and implies that had the 2002 election been held under first-past-the-post Labour would have gotten 110 of the 120 seats, but it's still worth a look!

One thing highly annoying to armchair journalists like myself is when the 'obvious' next question isn't asked - where an interviewer has a subject on the ropes, and doesn't know some detail or argument, or can't see a logical consequence of a position, so fails to ask an important question.

With a large number of news articles and blog posts on ACT's recent 'Maori radicals' advertisement, and its general approach to the election campaign, in which the next question doesn't seem to have been asked, I would appreciate if the next journalist interviewing Don Brash would ask something akin to the following:

Dr Brash:

• if the ACT Party you lead is in Parliament after the general election, could it enter into a confidence and supply agreement with a Government that included Maori Party ministers, was in coalition with the Maori Party, or had an arrangement for support on Confidence and supply with the Maori Party?

• do you and the ACT Party have confidence in the current government, which includes ministers from the Maori Party? Why?

Feel free to add your own.

John Tamihere's Think Tank panel show (TV3 Saturdays 11:30am) looked at the voting system referendum this week, with David Slack, Matt McCarten and political science student Jonathan Williams. It was an interesting and informative discussion, but as I sat watching, every so often I'd hear myself saying "well that's not true" or "no they don't", so a post seemed appropriate.

More famous/better resourced Fact Checkers like FactCheck and PolitiFact check factual claims in the news media, and by politicians in interviews and during debates. Politifact ranks claims from true through mostly true, half true, barely true, false and pants on fire. I don't really have the time to tell you when people get things right, so I shouldn't be seen as being too critical of those I'm fact-checking (unless they really deserve it). I didn't agree with everything that was said, but the discussion was useful, and the particular focus on the things that could be done to improve MMP may provide a useful starting point for that important discussion.

But there were a few things that bugged me, and even one thing I asked "is that true?" to check and found out it was. Here goes:

Matt McCarten: who would have though that when they put the one seat in that that started to determine the make-up of the government? You know, so what hapens is that the major parties, in this case it was National with ACT does a deal with them in Epsom, you know that's actually the National Party candidate you vote for ... Rodney Hide comes in you know they were all going at 1% in the polls and suddenly hey shot up oh look we're gonna win a seat so it's worh something get 5 MPs and of course Winston who got more votes got nothing.

The Greens almost also in 99. they got the nod about Corromandel and they got in because the previous election as they almost got under 5% and I remember that it was Nándor and Sue Bradford are waiting on TV that night about whether the Greens were going to get into Parliament or not.

1. Rodney Hide was not handed a seat, which he looked like winning. He took Epsom off an incumbent National MP, and the one public poll suggested he wasn't going to win it, so ACT support tanked, and they dropped to two MPs. ACT did get five MPs at the following election, but it wasn't sudden.

2. The Green Party did not contest the 1996 election. They were part of the Alliance, which got over 10%. Nándor Tánczos did contest the 1996 election, but as number 5 on the list of the Aotearoa Legalise Cannabis Party.

David Slack: On the 'where does the wasted vote go' question ... there's a technical answer first that's how you recalculate it that's probably less interesting to people except for knowing that the short answer is if you didn't get 5% or he didn't get a seat, it's gone.

There isn't a technical answer. David's short answer is also the long answer. The votes of parties that don't pass one of the two thresholds are simply ignored in calculating the final make-up of parliament.

DS: Talking about the list, there'd be what? Half a million people voted Labour in the last election, I don't think you get more than a thousand of them would be able to tell you who was on the list under number 10.

Labour got just under 800,000 votes at the last election.

The last time Labour got half a million votes or less was 1966 :-)

Jonathan Williams: I just wonder how important this is. Do people really care who number 35 on the Labour list. Does it matter that Chris Finlayson was brave enough to run in Annette King's electorate which is solidly Labour. He got thrashed. He lost, but he's still a good MP. He's still our Attorney-General. Should he not be in Parliament because he ran?

Did Chris Finlayson really get thrashed? Well, yes. Worth checking, but Annette King got nearly twice the vote of Chris Finlayson. I am not usually a fan of hyperbole but I'm not sure it counts as hyperbole when it's true...

MM: When the Royal Commission first did MMP they came with the German model which was the 4% and that was a threshold about whether you had seats or not. The Parliamentarians at that stage - because there was Winston Peters, Jim Anderton and Dunne - all were sitting there as very small parties with their own seats, they only had their seats so deals were done in the back room: if I keep my seat I get all my votes but we don't want anyone else in. And so it was deliberately the deal was done in the back room that went against the Royal Commission's thing to suit those MPs. And so they lifted the threshold to five and then made sure they got all their votes if they won their seats.

1. The Royal Commission on the Electoral System did recommend a 4% threshold. But it also recommended the single seat exception.

2. Also, Germany has a 5% threshold. And they also have an exception if the party gets wins three electorates (the Bundestag has 299 electorates).

3. In 1993, Peter Dunne was still in the Labour Party. He didn't leave until after the 1993 referendum had adopted MMP. Jim Anderton would lead a party that would get more than 18% at the 1993 election; I'm not sure a four or five per cent threshold was a particular concern. I'm led to believe there was a deal between Labour and National, but I suspect we Murray McCully and Pete Hodgson are more to blame than Dunne, Anderton and Peters.

John Tamihere: The Royal Commission also ruled that to do away with the Maori seats the best thing to do is to drop the threshold to three per cent. Bolger determined not to do that, It was a National Government that determined not to do that. Why was that do you think?

JW: I think firstly a good thing about what we're doing with this referendum is that Simon Power has given the power to the Electoral Commission not to politicians to determine what the changes should be. So we're not going to have politicians making changes in their own best interests. It'll theoretically be in our collective interest.

1. The Royal Commission did not recommend dropping the threshold to 3% if the Maori seats were abolished, Rather, it recommended that "Parties representing Maori interests" should not have any threshold. They also suggested (but didn't recommend) that this waiver might also be extended to other minority ethnicities, if that was thought desirable.

2. If Keep MMP votes wins the first question, the Electoral Commission will conduct a review of MMP. It will make recommendations, but its recommendations will not determine what the changes should be, any more than the Royal Commission's recommendations determined what MMP originally looked like.

After the Electoral Commission has made recommendations to the Minister of Justice, Cabinet will consider and approve draft legislation which will then go to Parliament to enact or reject. Just as in 1992/93, MPs will be able to make changes in their own interests or for any other reason.

DS: The threshold is problematic, and I think we need to change it. The way I see it working is you say if you're going to have qualification on the basis of just winning a seat but not making the threshold, I think you should make it at least two seats or lose it all together so that you just have a threshold, but it's not a seat. That means that your single MP getting elected: the like of Jim Anderton or Peter Dunne - who actually enable a first past the post outcome by just bolstering up one of the big parties - is actually getting in the way of proportional representation.

Single MPs from minor parties do not get in the way of proportional representation. In no election has Jim Anderton or Peter Dunne caused an overhang. Their parties have always earned enough party votes to get earn that first seat for the party. Had their seats instead been won by the parties they supported, proportionality would have been worse.

While there are arguments against the single seat exception, that it makes Parliament more disproportionate is not one of them. The single seat exception operates to ensure that voters who support small parties are proportionately represented.

MM: I agree, I think you should just get rid of - if you win a seat electorally it's what you win, but to actually get somehow extra MPs which another party who gets the same amount of votes as you doesn't get just seems like it is a gerrymander it was set up to be one. It was deliberate and it should go. So I think that it should be irrelevant. You win the electorate, you win the electorate  but the percentages of the threshold - if there's one - and in Israel of course there's no threshold, you just kind of get the votes you get. But if there's a threshold it should be a reasonable one but it should apply to everybody equally.

The Israeli Knesset does not have "no threshold". It has never had "no threshold". Until 1982 it had a 1% threshold. From 1982 to 1993 it was 1.5%, and the threshold is now 2%.

DS: Personally, I would prefer that you still have a threshold so you don't have a lot of small parties. I think at 4% perhaps or 5%, but it means that you've got a better chance of longevity of minor parties. So that you don't have them, the problem you got at the moment is that a party kinda like a bee gets its sting in but it dies. You've seen it again an again. The party goes into coalition and then its voters abandon them because they feel like they've been betrayed.

This isn't really a fact check. I just don't think this argument has anything going for it. The harder it is for parties to get into or stay in Parliament, the lower the longevity of minor parties will be. With a much lower threshold, the Alliance (1.27% when it went out in 2002) might still be there. Bloggers on the right are always looking at polls and hoping the Green Party will fall below the 5% threshold, with a lower threshold, this wouldn't matter, but three years out of Parliament could make it difficult to come back.

JW: I do think we should look at the threshold though because the threshold was originally introduced in Germany to keep the Nazi party out, but we don't have extreme racist or religious parties ... I don't think we have really dangerous parties coming in if we had a two and a half or a three per cent threshold, it would mean there'd be a 100,000 people in the last elections whose votes counted for nothing would now have representation and we'd have a more democratic Parliament.

I particularly like this because it talks about a threshold option other than 4% or 5% which is all I've heard any member of Parliament or media commentator talk about. But I have to dispute the statement about Germany. After WWII, the Nazi Party was banned in Germany, so the threshold cannot have been introduced to keep them out. The pre-World War II electoral system in Germany was a pure proportional system (i.e. list vote only) with no threshold. It led to an incredibly fractured Parliament. Avoiding this was likely the major reason for the threshold. Making it difficult for extremist parties will also have been important, but it was not about the Nazis.

JW: Under all of the other systems we'd have majority one-party governments...

While first past the post, preferential vote and supplementary member will usually result in majority one-party governments, the single transferable vote system is considered a proportional system, and is very unlikely to result in majority one-party governments. STV will usually lead to coalition governments, or minority governments with support arrangements with other parties.