Legal Beagle by Graeme Edgeler

Welcome to my first (official) fact check of the 2011 Referendum on the Voting System.

In an earlier comment, I mentioned I’d intended to fact check the referendum on the voting system. I’ve already done something of a fact check on one of the Electoral Commission’s own advertisements, and another on a laughable piece in the NBR, but with the “Vote for Change” lobby group publicly commencing its intentions, and Morning Report running three pieces on the referendum, including the first debate between the Campaign for MMP and the Vote for Change lobby groups, today seems like a good time for the Referendum Fact Check to officially begin.

The debate between Jordan Williams of Vote for Change, and Sandra Grey of the Campaign for MMP was pretty good. Some of the arguments might have weak points, or obvious rejoinders, or strong counter-arguments against them, but they’re opinions, about which reasonable people may differ.

For the most part the Referendum Fact Check won’t be looking at those (though I’ll likely have things to say elsewhere). Fact Check is primarily about two things: (1) statements that are just wrong, and (2) material which leave out potentially important information in a way that leaves voters uninformed, if not misinformed.

And today’s first debate (.mp3) between the Campaign for MMP and the Vote for Change only had one major error. And it wasn’t from one of the participants, but from the introduction by the Radio New Zealand host, who said:

“voters will first be asked if they want to keep the mixed member proportional system or change to another method: those who favour a change will then be asked which system they prefer: first past the post, supplementary member, preferential voting and single transferable vote.”

This was an error made multiple times on Radio New Zealand this morning with reporter Chris Bramwell also noting (.mp3):

“In just five months a referendum on MMP will be held alongside this year’s general election. It will first ask whether voters want to retain MMP or change to another system. Then it will give four other voting systems to choose from if voters opt for change…”

 and later:

“The four other systems that voters can choose between if the opt for change are first past the post, supplementary member, preferential voting, and single transferable vote.”

This is wrong.

Voting in the second question is not limited to those who vote for change in the first question.

Voters who vote to keep MMP can also choose from the options in the second question. This is pretty fundamental, and I'm disappointed Morning Report made the mistake so many times.

Chris Bramwell's story also carried the following quote from Green Party co-leader Russel Norman:

“The way SM works is that you have a first past the post system for say a hundred MPs and then the 20 remaining MPs are elected proportionally. So it means that a party with 10% of the support of the country could end up with two seats out of 120 so I don’t call that a proportional or even a democratic system.”

Not Bramwell's fault, but Russel Norman should know better. It’s technically accurate, but is unnecessarily misleading. This sort of supposition about what Supplementary Member might look like isn’t needed. Parliament has already declared that if we adopt Supplementary Member as our voting system, it will have 90 electorate MPs and 30 list MPs (which is incidentally, what the Royal Commission on the Electoral System recommended if we went with Supplementary Member). The point about SM not being proportional is valid, but there is no reason to use misleading statements to support it.

But on to the debate proper. There first bit of missing context concerned the Maori seats:

Morning Report: "You mentioned as well the Maori seats. How do you see that fitting into any change if there is indeed one?"

Jordan Williams: “Well, the Royal Commission recommended that under MMP the Maori seats were no longer needed . I think that because of the way that the Maori seats are worked out it’s not one of our vote for changes primary objectives. It’s not a question that’s in front of us and to be fair I can’t represent what exactly our membership think.”

Sandra Grey: “And at this stage of course the Government has actually said this referendum will not look at the number of politicians, the number of MPs in Parliament nor will it look at the Maori seats. So actually those issues have been taken off the table for us to talk about.”

The statements are all true, but important facts are left out. We're not being asked whether to abolish separate Maori seats, and the referendum can’t see the Maori seats disappear, but a change from MMP would change the Maori seats.

Under MMP there are currently 7 Maori seats. A change to first past the post, or preferential voting, or single transfer vote systems would see an increase in the number of Maori seats to at least 12, and probably 13 seats. A change to the supplementary member system would see an increase at least 9 and possibly 10 Maori seats. The issue of Maori representation will be important for many voters, even if they're not directly in issue. The main campaigners, and the reporters who are interviewing them should be able to let people know about this when it comes up.

The second bit of some contention comes around the argument over the best course of action for people who support MMP, but would like to see changes made to it:

Jordan Williams: “To have that debate New Zealanders must vote for change. If New Zealanders vote to keep MMP at this election we don’t have that debate over the next three years.

Sandra Grey: “We do have that debate because the Government has said if we vote to keep MMP there will be an independent review run by the Electoral Commission and all New Zealanders will be …"

JW: “Let the politicians decide the Changes…”

SG: “No.”

JW: “That’s like asking the turkey to organise Christmas.”

SG: “They’ve said an Electoral Commission review will be held…”

When two people are making largely contradictory claims, it may be useful to have the full context laid out:

If the vote on the first question is to keep MMP, then there will be a review of MMP conducted by the Electoral Commission, which will likely have a process for public input, after which it will make recommendations for change over a number of areas: the 5% threshold, the single seat exemption to the threshold, whether there should be open lists, whether the number of list MPs should change, whether MPs who lose their electorates should be able to come back in on the list and others.

The Government would decide whether to adopt any of the recommendations, or whether to propose different ones. Any changes the government wants would be included in a bill that would be introduced in Parliament and then go through the ordinary processes, with select committee hearings, etc. It would be up to Parliament what changes, if any, to make to MMP. If there was some contention, Parliament might decide to send some proposed changes to a referendum, or might not.

If the vote on the first question is the change to another voting system, this review of MMP will not happen. The Labour party and others at the Select Committee tried to argue that it should, but the Government rejected this.

The Government will determine what it wants the alternative voting system to look like, and will propose a bill to Parliament that would implement it if carried by a majority in a binding referendum. This bill would go through the ordinary parliamentary process with select committee hearings etc. It would be up to Parliament what the final version of the alternative voting system would look like. (None of this is actually not required by the current legislation, but both National and Labour and other minor parties have said they will respect the decision of voters at the referendum this year.)

It is possible that the new Parliament elected at the November general election may decide to hold a review of MMP even if the change vote wins so that the possible 2014 referendum will be between an alternative voting system, and a different form of MMP to the one we currently have, but this is not currently the plan.

And a final piece from the other Morning Report article on the voting referendum. It's not about the referendum itself, but it's an example of factual argument that doesn't quite stack up. In Julian Robin’s piece introducing us to the Vote for Change, spokesman Jordan Williams had the following to say:

“Let’s look at Winston Peters. We’ve had five elections under MMP under two of those, possibly this election a third time it’s been Winston Peters that has chosen who is the Prime Minister.”

Jordan is right for 1996, but that’s it.

The votes in 1999 and 2002 were clear Labour wins, Winston couldn’t have gone with National to form a government even if he’d wanted. I assume Jordan is talking about 2005, but it didn’t happen there either: Winston didn’t have an option between Helen Clark and Don Brash in 2005. National + ACT + United Future + New Zealand First would not have been a majority, they’d also have needed the Jim Anderton or the Maori Party or the Greens to help: just because Winston was in government with Labour doesn’t mean he determined who it was.

Let me know what you all think. I’m particularly hopeful that mistakes like that made by Morning Report this morning won’t confuse voters about the referendum process. I probably won’t be able to review every piece of propaganda or news story, but if you see anything you’d like the Referendum Fact Check to look at, please let me know.

In which Graeme tempts the fates by engaging in political analysis: Hone has won his by-election. And by a wide enough margin that he can feel safe come November.

This is Good for Mana

The win in this by-election allows Mana the safety, at the general election, of campaigning for the party vote, with voters in the knowledge that there votes will not be wasted.

It was a risk, but it was also necessary. And I'd be saying the same had Hone lost. Mana has its Epsom-esque anchor seat. Had Hone waited until the general election, the possibility that he mightn't win would have scared off voters. Perhaps enough voters to diminish their post-election number to by an MP or even 2. It is, I suspect, what happened to New Zealand First in 2002. Tauranga looked close, and the 5% threshold loomed large, so some voters were scared off. With a substantially lower (or no) threshold NZF could well have breached 5%.

The same thing could have happened to ACT in 2005: voters weren't sure Rodney would win Epsom, and ACT slumped to 1.5% and 2 MPs. ACT might not have made it to 5%, but the knowledge a vote for ACT would not have been wasted could easily have seen it with 1 or 2 additional MPs.

I don't expect Mana to reach 5%, but the confidence voters can now have that a Mana vote won't be wasted, could easily be the difference between the ~1.2% of the party vote needed for a second MP and the ~2.0-2.1% needed for a third or (or even ~the 2.8-3.0% needed for a fourth).

Without this safety, the looming threshold could have frightened the voters, and Hone could have been by himself, or with just one colleague. A base of 3 or 4 MPs is a much better platform to build a parliamentary movement than 1 or 2.


This is Good for Labour

Labour held the Maori seats for decades. And

if they want to get back some of those they lost to the Maori Party - if Labour were playing the long game - then a Mana victory is an immense help. I suspect support for Mana and the Maori Party come from similar types of voter, and if those voters are split between Mana and the Maori, the chances of Labour re-taking the other Maori seats at the general election must increase.

Unless, of course, Mana doesn't stand candidates in Maori Party held seats, and thus far, Hone has shown every inclination that he really doesn't want to.


This is Good for the Maori Party

The Maori seats are the lifeblood of the Maori Party.

If the Maori Party wishes to hold onto its seats - or even take Labour's Maori seats from it - then it doesn't want Mana running against them. Hone has his seat, and has now removed any doubt that it is his seat. In each Maori electorate there is likely to be room for only one candidate seeking the support of voters inclined to the values both Mana and the Maori Party attest. In Te Tai Tokerau, we know that will be Hone. After its loss, the Maori Party is in a better position to learn the lesson.

Hone offered a deal: don't run against me and we won't run against you. Mana seeking the Maori seats held by the Maori Party could be enough for them to lose a number of those seats to Labour.

I really do not think Hone wants that to happen. In spite of the animosity between them, I don't think Hone wants to compete in electorate races with the Maori Party.

At least not yet. In the years to come, who knows? But at the 2011 general election, I'm of the opinion Hone wants Mana to focus on the party vote only. Electorate vote Maori Party, party vote Mana, and get two MPs.

I really do think Mana wants to maximise its party vote, and the lesson provided here to the Maori Party is that they should take the deal. Without a loss here, it may have been difficult for the Maori Party not to run in Te Tai Tokerau in November. They're now in a better position to learn the lesson and take the deal. Which I very much think is still open. And if they take the deal, their election chances in November are much greater.

A few final words about that deal. It is couched in terms that would allow Mana to contest the Labour-held Maori seats, but I suspect they don't even want to do that.

This is simply an end-run around the distortion-causing 5% threshold. Mana wants your party vote, and wants voters in the Maori electorates, and the general electorates, to give it to them: Maori electorate votes outside Te Tai Tokerau won't help them.

After my two posts (long version, short version) looking into the practical implications of the Ter Tai Tokerau by-election, I thought I check with the Electoral Commission to see whether Mana had been registered as a political party.

At a 4:38 this afternoon, I spoke to someone at the Electoral Commission who confirmed that a final decision had not been made and the matter was still in train.

And at 4:41, as I was preparing to write this, I got emailed a media advisory from the Electoral Commission that they had been registered, sent, I am told, as soon as the decision was made. That's timing.

Anyway, the matter is now abundantly clear. If Hone Harawira wins the Te Tai Tokerau by-election, he will be entitled to be recognised as the Leader of Mana in Parliament, and will be entitled to be paid and funded on that basis.

Will Hone win? Who knows? Every prediction I have seen in the media or on blogs, or on facebook for that matter has been wishful thinking. If the predictor was a Hone/Mana supporter, they predicted Hone would win. If a Hone/Mana opponent, they predicted Kelvin would win.

I haven't a clue. But we don't have long to wait.

There’s a referendum this year on our voting system, and the Electoral Commission is readying its public information campaign. Orange Guy even has a few videos (MMP, FPP, PV, STV & SM).

I should perhaps include *spoiler warning* because they won’t air on TV until Sunday!

I’m readying my bit for the campaign too. The draft of my “what voting system should I choose” tool (chocolate fish for the person who can come up with the snappiest name) I announced at the Great Blend a couple of months back is done, and we’re in the process of getting it into a usable form. Things seem to be happening.

A year ago I proposed that if the result of this referendum was for change, that the Electoral Commission should be tasked with making the first draft of the alternative system. It had support from across the political spectrum, but the Electoral Legislation Committee, and its Ministry of Justice advisors didn’t like my idea, rejecting it because it was a non-binding referendum. I wasn’t proposing to change that, but oh well.

More disappointing, however, was that the Committee also made some design choices on the alternative systems. Without public input. Or the public really knowing that they were even considering doing it. They decided, for example, that if we go with Supplementary Member (SM), there would be 90 electorates and 30 list seats. They decided that if we go with Single Transferable Vote, then people will have the choice of voting “above the line” (adopting a party’s voting order without having to number all the candidates yourself). But they left quite a bit open for decisions after the referendum.

So I’m somewhat surprised that the Electoral Commission has decided to fill in the gaps. I suppose I should be pleased, but given that Parliament chose not to do that when presented with the option, it does seem a little presumptuous. My particular concern is with Orange Guy’s STV video:

Now, all the big details are done right. But starting from 1:03, we have the following quote: “but there is still one seat to fill, so the lowest polling candidate is eliminated and those votes go to his voters second choices who are as yet unelected…”. Now that is one way to count the votes in an STV election, but it’s not the way that is described in the Electoral Referendum Act, and nor is it the way we use in local body elections that use STV (as the government’s own stv.govt.nz website shows). And the simple point is that STV can still be explained – and the video would still make sense – if the last five words I quoted were just left out.

I’m pretty sure I haven’t read too much into those words, because the Electoral Commission’s leaflet (.pdf) makes it crystal clear that in the Commission’s view that under STV, the votes of eliminated candidates “are transferred to the unelected candidates ranked next on those votes”. Which is just not how we do STV elections in New Zealand, or how Parliament said STV general elections would be done if we were to have them. In New Zealand, the second preferences of eliminated candidates can go to already elected candidates (and are redistributed from there). This can make a difference. My local council election in 2007 would likely have seen councillor Jack Ruben remain and newcomer Jo Coughlan out if the process the Electoral Commission describes were adopted instead of that detailed in our Local Electoral Regulations.

Big deal? No. In the context of the advertising campaign, it’s a largely irrelevant detail. It’s not a fundamental feature of the STV system, or something that will influence anyone’s vote. But I’m left wondering why they felt the need to say it at all.

When contacted for comment, the bright orange spokesman for the Electoral Commission advised “I've checked in with the Electoral Commissioner and he's come back to me to say the Electoral Commission is confident that the explanation of the STV voting system is fair and accurate. If there were to be a follow-up referendum and STV were to be the alternative option to MMP, Parliament will decide the precise details for the STV count process.”

Which just leaves me more perplexed: if the Electoral Commission knows that this is one of the things Parliament will decide in the future, why act like it has already made a decision? Especially when Parliament has already said (in a non-binding way) what happens to the votes cast for eliminated candidates, and the Government has said what happens in the STV elections we already have. And that differs from what the Commission is saying now.

I also note the STV video states that under STV, each electorate will have between 3 and 7 MPs. Parliament left this bit silent too, but in the STV leaflet the 3-7 MP range is noted only as “likely”. The Royal Commission on the Electoral System did recommend (.pdf) that if we were to use STV for general elections that most electorates would have 5 MPs, but up to 20% of electorates could differ from this, having as few as 3 or as many as 7 MPs. The Electoral Commission’s suggested numbers for the electorates would not meet the Royal Commission’s criteria, and it seems odd that the video says “New Zealand is divided up into about 27 electorates”, while the example given in the leaflet is for 28 electorates. Jus’ sayin’.

I have the generally poor habit for a blogger of writing far too much when I write about something. Having now seen, read and heard some coverage of Hone Harawira's decision to resign from the House of Representatives and run in a by-election in Te Tai Tokerau a potted summary of my last piece seems like a good idea:

1. It is NOT clear that Hone Harawira or The Mana Party will be eligible for increased parliamentary funding if Hone wins the by-election.
2. If Hone wins the by-election as a candidate for The Mana Party, and the Mana Party is registered with the Electoral Commission in time for the by-election, the Mana Party WILL be entitled to party funding in Parliament for parliamentary purposes.
3. If the Mana Party is not registered with the Electoral Commission by the by-election, and Hone seeks election as an independent, as Matt McCarten has said he would in such a circumstance, then the Mana Party will NOT be entitled to party funding in Parliament, even if it later registers.
4. If Hone wins the by-election as a candidate for an unregistered Mana Party, then the Mana Party MAY be entitled to party funding in Parliament.
5. Point 4 turns on a new question of interpretation: if parliamentary authorities adopt the same definition of the word party as is used in the Electoral Act, then the Mana Party will NOT be entitled to party funding in Parliament. Electoral Act provisions are used in determining related matters, but it has not been categorically determined whether they also apply to the definition of party in this context.

6. The closest historical comparison is the 2004 Te Tai Hauaruru by-election, which saw the re-election of Tariana Turia. Tariana Turia contested that by-election for the Māori Party. The Māori Party applied to the Electoral Commission for registration before nomination day and its registration was approved before polling day. The Māori Party did receive funding (.pdf) following Tariana Turia's election.

Finally, I re-iterate that as the Deputy Chair of the Māori Affairs Committee, Hone Harawira is currently paid more than an ordinary back bench MP (so journalists should stop using a back bench MP's pay as a comparison!). He will lose this position when he resigns. Details of the other stuff Hone will cease to be entitled to are included with my earlier post, which also has the full explanation and references for the above material.