Legal Beagle by Graeme Edgeler

In recent weeks calls for a re-think on MMP have resurfaced. National has re-iterated its policy of asking the public what it thinks of MMP, and there have been the usual responses - those who complain about unelected MPs lacking public mandate, those who wonder why the promised re-vote on MMP has taken so long to come about, and those who accuse proponents of alternative voting systems of "hating democracy". None of this is surprising.

What has somewhat surprised me is the reaction of the Māori Party to the suggestion.

I realise that the Māori Party considers itself among the "MMP Parties", but it really shouldn't. Its lifeblood is the Māori electorate system. It relies in absolutely no way on the party vote. Whatever Atareta Poananga's hopes, it may never earn a list seat.

And it would thrive under a return to first past the post.

National may be pushing for referendum for a number of reasons - it might secretly want a return to first past the post, because of the greater legitimacy directly-elected representatives bring; it might not care, but figures the promise of a re-vote may pick up a few thousand votes from people for whom it may be a deal-maker. Maybe it figures a move to a less proportional - but still democratic - system will enable a stronger government to take the necessary steps as the country moves forward.

Maybe it's just naked self-interest. But that self-interest isn't terribly different from that of those who seem to oppose going back to the public. If National were pushing for first past the post to give them a better chance to govern, isn't Labour opposing it because it doesn't want National to have a better chance to govern? I can't really fault them for bringing self-interest into the calculus - political parties are, well, political. But that self-interest is exactly why questions around the voting system must be taken away from the politicians. That is why answering such questions belongs with the people.

But I'm wondering why the Māori Party isn't into some of that self-interest themselves. The Māori seats were greater supporters of MMP than the general seats. We cannot know why, but at least in part I think it must be because the then proposed Electoral Act 1993 would do away with the restriction on the number of Māori seats that the Electoral Act 1956 imposed. Before MMP, no matter how many (or how few) Māori opted for the Māori roll there were 4 Māori seats. There were 4 Māori seats when there were fewer than 80 electorates and there were 4 Māori seats when there were 99 electorates. The change to MMP finally saw the Māori seats achieve parity of representation - not only with an additional fifth seat, but with a far higher proportion (5 Māori seats against 62 general seats vs. 4 Māori seats against 95).

If this innovation is not abandoned - and I can't conceive that it would be - a change to first past the post would far from eviscerate the Māori Party (the threat it faces is rather the abolition of the Māori seats). It would strengthen them: practically, the Māori party has an effective limit on its power - it is exceedingly unlikely ever to earn a seat other than a Māori seat - which presently form 5.8% of the Parliament.

There are 7 Māori seats now. And 63 general seats. A 120 seat first past the post Parliament would see 12 Māori seats (and perilously close to 13). Even a 100 seat Parliament would see 10 Māori seats. And the Māori Party would stand a pretty good chance of getting nearly all of them nearly all the time (for the near future, anyway). Rather than a maximum of 7 seats in a 120 (or 121, or 123 seat Parliament), the Māori Party's 3-4% of the vote could generate 10% of seats in Parliament, and in close-ish elections (most other than those like we look to be having now) they'd stand a good chance of holding the casting vote in Parliament: a near permanent hold on the balance of power.

[insert cautionary cliché about weeks, time and politics here]

And of course, any situation in which the Māori Party would fare poorly in a race for the 12 first past the post Māori seats would also be a situation in which they'd fare poorly in the effective first past the post race for the seven Māori seats under MMP (with it probably easier to ensure themselves one or two seats out of the 12, than one or two out of the seven).

Add to this that any move to first past the past makes the argument for abolishing the Māori seats somewhat weaker, and it's a little surprising the Māori Party haven't been more open (at least) to the prospect of a referendum.

Which was of course supposed to be the focus of this column.

It is one of the enduring myths of New Zealand politics that voters were destined to have a further referendum to confirm or reject MMP. No promises of such were made before the 1992 plebiscite or the 1993 referendum. The story appears to stem from PM Jenny Shipley's public musings before the first MMP election (i.e. after we actually chose MMP) - she repeated it a couple of times, and talkback callers and letter writers have been repeating it ever since. It's her legacy as Prime Minister.

But that the expectation arises in part from a myth is not a reason to refuse to meet it. 2011 will our sixth MMP election. 2014 would be our 7th. There is no overwhelming movement for change, but there shouldn't need to be. The electoral system should be of the people and it is right that every so often, the people should have their say, alone in the four walls of the voting booth. Three or four times a century - once a generation - doesn't seem too often to obtain anew a public mandate for the way we choose our leaders (we'd be going slightly early this time, but I think it's appropriate given the change to MMP made last time).

Just as the argument has been made that first past the post is 'undemocratic', the argument can be made that MMP is 'undemocratic'. We know that Zimbabwe isn't a democracy because - no matter how many people want him gone - Mugabe seems to be able to stay. At our last election a number of MPs were thrown out by the electorate but returned to Parliament - is that 'democracy'? Under first past the post, of course, Helen Clark might be Prime Minister even though 99% of the country wouldn't even have had the chance to vote for her, much less vote against.

MMP or first past the post may be more or less representative, or more or less proportional, but neither is democratic, and neither is undemocratic. Electoral systems aren't democratic, countries are. New Zealand is democratic. And a choice between two voting systems cannot make or break that - least of all where that choice is made by the people in a free vote, after a fair fight. The two electoral systems are each perfectly legitimate ways to elect a Parliament and Government - and there are arguments for and against both - competing positions it is for the public to evaluate.

Opening the electoral system to direct public input is not scary. Enough time has passed that people may properly know their opinion on MMP, and the idea of referendums (not referenda) shouldn't become a political football. The electoral system is important, but there are far more urgent things about which the upcoming election should be fought. Our politicians shouldn't be afraid of seeking our views on this matter - and should be wary of pushing their own. And it is fitting - and right - that parties across the spectrum support calls for a new public conversation - with our voices to be heard through the ballot.

I support MMP - I'd make a couple of changes at the margins (a lower threshold, for one, a couple of extra reserved sections, and I kinda like the idea of open lists), but I do not see myself supporting moves toward first past the post, or supplementary member, or STV.

So this isn't about MMP.

It's just time.

It might also be time for a number of questions (referenda, if you will). The public haven't had their say on the term of Parliament since 1990. We've never had our say on a voting age below 18. Or restricting the franchise to New Zealand citizens (we're one of very few countries that allows its permanent residents to vote - any Australian in New Zealand for a month before an election can register and vote).

Even though I'm not leaning toward supporting change on any one of these issues, now seems as good a time as any. And I doubt a later election will be better.

I might lose. I'm arguing for referenda on issues where I pretty much support the status quo, so I can't really win, but I think it proper to ask those who might oppose seeking a new public mandate for our electoral system 'why?'.

Do they oppose a referendum on MMP, because they oppose a referendum, or because they oppose first past the post? For many, I suspect it is the latter, and it is a poor rationale. Fear of being in the minority - of democratic loss - is a appalling reason to oppose democratic input. That way lies dictatorship.

I do not particularly care why National hasn't abandoned its policy of allowing the people to reconsider our voting system. And "reconsider" is a loaded word - I never had the chance to consider it the first time round! Anyone whose first election was 1996, or 1999, or 2002, or 2005, or will be 2008 or 2011 hasn't had a chance. Others will have had their say in 1993 but not in the indicative plebiscite that preceded it. In 2011 - the putative date for the first referendum - only those in their late thirties will have known elections other than under MMP. You'll have to be over 40 to have had your views asked on the length of the parliamentary term.

National's motivation is unimportant. If they're pushing for first past the post, or supplementary member in a referendum then I'll look at the effect such changes might have on them and others. But a referendum doesn't affect them - it affects me. And it's nice to be asked.

The launch of TVNZ 7 – our public broadcaster's move into a dedicated factual channel – heralds Russell's true breakthrough into television, but its Wellington briefing included something rather different to whet my appetite for free-to-air digital television.

The briefest of glimpses in the opening montage (viewable under related video here).

I still probably won't get it – shelling out hundreds of dollars for a satellite installation in a flat I might not be in six months from now seems a little extravagant, but now I'll feel like I'm missing out. On the Olympics in high definition too, so I'm told.

[EDIT: Russell informs me that in about a month, I'll be able to get a freeview set-top box that will work through a standard UHF aerial (it's UHF you'll need to get HD broadcasts, incidentally). Now if only I wasn't using bunny aerials...]

Tim is disappointed. I am not. I am a television news junkie, and rolling news channels just do not cut it. A new channel bringing the best of the world to New Zealand is exactly what I wanted.

When TV One and TV3 last swapped American newsfeeds, and TVNZ picked up its exclusive deal with Disney (which owns ABC), TV3 didn't just lose the chance to bid for Desperate Housewives and Grey's Anatomy, we lost World News Tonight with Peter Jennings from free-to-air television. It might have aired post midnight, but for a long time it was the news programme I least liked to miss. But TVNZ got the rights to World News Tonight and then sat on them, preferring to fill all its overnight slots with BBC World.

It's finally back. Peter Jennings may no longer be with us, but World News with Charles Gibson will air nightly at 5:10 and 11:35. In a country where every fatal car accident gets a mention on the six o'clock news, it's fantastic that New Zealanders will again see network news as it is supposed to be done. And in 25 minutes.

Because – as I said – I am a broadcast news junkie (and a network news junkie at that). I've taken to podcasting NBC Nightly News with Bryan Williams most nights ( occasionally watched back-to-back with CBS Evening News with Katie Couric) and can't get enough of it. The startling absence of things at which I can exclaim that's not news, at most one human interest story – and it's actually interesting; and no sport or weather, unless it's also newsworthy (a blizzard, the Superbowl, a world cup final), and gravitas ... why can't we do gravitas in New Zealand?

World News didn't fare its own 1-second spot in the highlight reel, rather it was a brief clip of ABC's Sunday-morning interview show that had my hopes up.

The Sunday-morning interview show has a heritage TVNZ has already sought to tap into. Simon Dallow's time at the helm of Agenda showed New Zealand could do it well. It is now something TV One is seeking to recapture tapping Guyon Espiner to front the interviews.

Unfortunately, the move to make Agenda an actual Sunday-morning interview show came with the introduction of an arts segment, two news bulletins and a weather forecast – effectively destroying the show as suitable for live or as-live viewing. I'm sure the agenda for this year's effort is well-advanced, but a move to ditch the extraneous elements, and to hand the show completely over to the political editor would be welcomed. Not only would fronting Agenda with Espiner show TVNZ is taking it seriously, and show TVNZ is taking us seriously, but it would show TVNZ has learnt the lessons of history.

Sunday-morning interview shows are an institution – the logical consequence of the public service requirement of all free-to-air networks in the United States, who are legally required to run news and current affairs. NBC's Meet the Press is the world's longest-running television show. It's been going so long that it started on radio. And its host Tim Russert has been doing it since 1991. So has CBS's Face the Nation host Bob Schieffer. Having a news organisation's premiere political show run by that organisation's premiere political reporter just makes sense.

The remarkable continuity of service is something New Zealand media would do well to note: Schieffer, 71, has been CBS' chief political reporter for more than 25 years. Peter Jennings anchored his last broadcast at 66 not long before his death. American television news is far from perfect, but the major problems with its quality that you'd readily identify with it are problems with cable news – like CNN or Fox – not the nightly network broadcasts. For all its faults, and all of the Internet's advantages, when done right, the nightly news can bring a focus to the news other media have so far never achieved.

I will remain reliant upon iTunes for my weekly fix of Meet the Press, but should I ever decide to shell out for Freeview (or someone graciously offers it to me free) ABC's This Week with George Stephanopoulus will greet me. Stephanopoulus is a former aid to Bill Clinton (he was the inspiration for Sam Seaborn), and a relative newcomer to journalism, but This Week has a pedigree: on-air for more than 25 years. For those after a weekly interview and panel show in the lead-up to the November election, it will be hard to go past.

That there are enough sufficiently interesting guests to fill five such shows each Sunday (the Full Ginsberg – appearing on each show on a single Sunday has only happened four times) is due in part to the US political system. With its weak party structure you can actually have members of the same party engage in a public debate, and with it's separate executive and legislature you can have interesting discussions with either. With our four million souls, we don't seem to be able to sustain an interesting year-round political discourse, and a lot more of it occurs behind a closed caucus- or cabinet-room door.

But perhaps a little honest and civil disagreement from within the Earth's “remaining superpower” will spur the programmers at TVNZ 7 to broaden their horizons in their second round of acquisitions ... or Wallace (or Russell) to reach for the skies on his limited budget. Or me to sign up.

Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.

If Hillary Clinton or Barack Obama wins 100% of the delegates in 100% of the remaining primaries and caucuses, they'll net the Democratic Party nomination. Much short of that – or a concession – and the Democratic nominee won't be decided until the August convention.

I don't discount the prospect of a concession, if one candidate does particularly well in the remaining races (Obama taking Texas could clinch it for him) a concession may even be likely, but absent this – or some major scandal – the elected delegates aren't going to be enough to decide the race.

Which brings us to the rules. And to attempts by both Obama and Clinton to reshape the rules to help their chances.

For her part, Clinton wants to allow delegates selected in Florida and Michigan primaries to vote at the convention. These states – stripped of their delegates when they held their primaries in breach of national rules (and knowing in advance the consequences of such a breach) – voted overwhelmingly for Clinton. Behind Obama, she'd like all the delegates she could get, and Florida and Michigan would narrow the gap.

The democratic candidates weren't permitted to campaign in these states (if they did they wouldn't get any delegates ever), and in Michigan Obama's name didn't even appear on the ballot. Every vote should count ... you can't change the rules to suit you after the game has started ... the voters of Florida played by the rules ... ad infinitum.

It's insoluble – the view of anyone with insight into the situation seems so bound up with their view on the nomination (I don't doubt that, were the situation reversed, the arguments the two camps are making would be too). For myself, I'd say that the delegates selected should not be able to vote at the convention, but that the moral victory Clinton can claim, and the effect the votes cast would have on the nationwide popular vote, should be factors the super-delegates consider if they get to determine the victor.

You can't help but wonder if the Democrats bought themselves a whole bunch of trouble with so strong a penalty for this breach of the rules. The Republicans faced a similar problem – and punished states holding contests too early by removing half their delegates, and no-one – not the voters in those states, nor the candidates seeking their votes, seems to have a problem with it. The democratic punishment applied only to primaries (caucuses elect people to state-wide conventions, which chose the actual delegates during the permissible time)

For his part, Obama isn't trying to change the rules, so much as get people to ignore them – pushing the idea that superdelegates are there to confirm the choice of the elected delegates, and that it is not their place to exercise independent judgement or over-rule the will of the voters. Except that's exactly their role. A role they played in 1984, when they gave the nomination to insider Walter Mondale over insurgent Gary Hart. Maybe it shouldn't be their role, but they're there – as people with a long association with the Party, and a lot invested in its future – and they act as guardians, to prevent a candidate in a close race from securing the nomination if it's not in the interests of the party.

The role of the superdelegate is to question “is this the best person for the job?”, “does this person – popular within the democratic party – actually have the better chance of taking the White House?”, “will this person do damage to our chance of holding or taking Congress, or Governor's mansions, in the election?”, or “will the leadership of this person damage the party into the future?”.

Superdelegates are not rubber stamps. In the words that preceded this post, they owe not just their industry, but their judgement. That judgement will take account of the view of the democratic primary voters, and caucus-goers – if the view is clear, but not quite overwhelming enough to win without some superdelegate votes, they won't go against it. And the superdelegates who are members of Congress may consider it political suicide to vote against the overwhelming wishes of their constituents (some African-American Representatives, for example, who publicly came out for Clinton early, have subsequently seen their congressional districts come out 70% or 80% in favour of Obama). There will be numerous matters taken into account, but ultimately the question is a matter for the super-delegate, and those who argue that their role is perfunctory are dissembling.

The race is not over – if Clinton does well in the remaining races, and makes a close contest in the elected delegates – or a close contest in the popular vote – then she may be able to make the case that she is best for the party, and best for the country. If she can convince enough superdelegates of that, then she deserves the nomination – whether she has a slight lead or a slight deficit in the elected delegate count.

Maybe she'll pull something else out of the 1984 primary season, and gain traction over Obamania with “where's the beef?”.

But maybe Obama knows the answer.

With my beloved Patriots falling at the last hurdle, we move from the Super Bowl to Super Tuesday. A recent poll found that 40% of Americans were more interested in Super Bowl Sunday than Super Duper Tuesday – but 37% were more interested in the primaries this week. It's about the best for which they could hope.

If it was ever about votes before, and wins, and states, now it's about convention delegates – 2025 is the magic number for the Democrats, and 1191 for the Republicans – very few have actually gone. In the early races, across small states with few (sometimes no) delegates at stake, it was about momentum – votes, money, media attention, and recognition. The two democrats and two republicans with serious prospects have made it this far – they don't need media attention any more. They don't need wins in the popular vote to gain momentum, they need delegates. Because delegates, not states, not votes, and not media glory, decide presidential nominees.

Delegates were nice before – while his opponents focussed on Iowa, New Hampshire and South Carolina, Romney picked some extras up in wins in largely uncontested early races – Wyoming and Nevada – to lead the early delegate race – but small leads in delegate counts don't get you momentum, and Romney couldn't capitalise.

Now delegates are everything. As a follow-up to my earlier piece looking at how caucuses and primaries work, I thought I'd go a bit into the delegate race we'll see tomorrow, and the weeks following.

There are over 20 contests today, and I'm not going to go into all of them – there are caucuses, primaries and conventions again (some open, others closed or in between) and myriad ways of divvying up the delegates.

For the Republicans, a number of states are winner-take-all – whoever gets the most votes getting all the state's delegates. This is expected to favour John McCain: the states he is supposedly certain to win – New York, New Jersey, Arizona, Connecticut, and Delaware – are winner-take-all, while some the states his chief opponent Mitt Romney is expected to win – such as his home state of Massachusetts – are proportional at the state level, or have winner-take-all votes at the smaller congressional district level (which may see the runner-up snare some delegates).

All the Democratic races are proportional – with delegates apportioned between the candidates at district level and state-wide. A narrow win is nice, but it's not necessarily all that much better than a narrow loss.

I'll explain using California.

Each of California's 53 congressional districts (the constituencies for the congressmen in the US House of Representative) has an election, at which between 3 and 6 delegates are up for grabs (most have 4 or 5). Although each congressional district has roughly the same population, they don't all have the same population of democrats – upon which each district's delegate value is largely based.

These district level delegates are awarded proportionately across the candidates reaching 15% of the vote within that district. It's useful to note that with the small number of delegates available, achieving real proportionality isn't always that easy. In a district electing four delegates, a 59% - 41% vote sees each candidate get two delegates (which may seem wrong, but it's closer to true proportionality than three delegates to one would be: my opponent got less than 50% more votes than me, why's that 200% more delegates?).

For California, that's how 241 delegates are given out. A further 81 at-large delegates are awarded proportionally across the whole state to candidates receiving 15% state-wide, and another 48 are awarded proportionally (again to candidates receiving 15% state-wide) to state party officials who make their preference known (democratic mayors and state legislators etc. – called party leader and elected official delegates or PLEO delegates). These are all pledged delegates, who promise to vote for their candidate in the first round at the convention.

This system, even though it's technically proportional, can lead to anomalies. It will usually even out, but a similar system saw Barack Obama win more delegates in the Nevada caucuses than Hillary Clinton, despite her state-wide triumph in the vote.

Each state in the Democratic process is basically the same – 75% of their pledged delegation is awarded proportionally at the district level, 25% is awarded at-large across the state, and 15% is awarded to pledged PLEO delegates (yes – the Democratic Party rules actually use these percentages).

There are unpledged PLEO delegates too, the superdelegates we looked at last time, but when you're trying to work out who's winning Super Tuesday, it's the pledged delegates at which you should be looking. The proportionality across the Democratic race means they're less likely to have a presumptive nominee at the end of the day, but there's a reasonable prospect of a true front-runner emerging in the Republican race – small victories in the popular vote can lead to large victories in delegate counts in some states which can quickly add up.

Super Tuesday has grown in size over the years, and this year sees it at new heights – in size, importance, and spectacle. The national primary is an institution – almost as American as the Superbowl, which bookends this post. An integral part of the spectacle of the Superbowl for the millions watching it at home are the advertisements, and this – embracing another great American tradition – the Macy's Thanksgiving Day Parade – is the pick of the bunch. I misted over, and it even got props from the folks at Cartoonbrew – despite the presence of an arch enemy:

Repeat after me: In America, as in New Zealand, it's only an election.

Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.

~ Publius (Federalist, No. 74)

Americans do pardons right.

Marc Rich, Scooter Libby, and Roger Clinton may prove they don't always do them well, but they do them right.

In New Zealand we pardon the innocent. I don't think it too semantic to point out that if you're innocent, you don't need to be forgiven. Indeed, if you are innocent, and the Government accepts that you are innocent, then the government ought to be begging your pardon for erroneously convicting you, or putting you in prison.

The United States Supreme Court has stated that a pardon carries an imputation of guilt, and that accepting a pardon is 'an admission of guilt'. The logic is flawless – to need to be pardoned, you must have done something bad – something, uh, well, for which you should be pardoned.

[A word of explanation – the issuing of a pardon involves the complete wiping of a conviction; the granting of a clemency, a commutation, or a reprieve, involves a lessening a sentence (perhaps replacing a death sentence with life imprisonment, or letting someone out of jail earlier); there are other less significant types: respites – delaying a sentence, remissions – revocation of fines or orders of forfeiture; and you can probably add in amnesties – generalised pardons – too.]

In the US, the place for the convicted innocent to find justice is through the judicial process – indeed that's why it's there. The pardon attorney of the President or of a state governor is well-placed to help decide whether a (guilty) convicted criminal deserves mercy – they are less well-placed to decide whether someone is guilty. Lest I be seen to overstate the matter, they occasionally pardon the innocent as well – I'm not going to go into the state by state variations – but pardons seem best suited for situations where it is felt that the consequences of a conviction now outweigh the gravity of the offending (perhaps because someone has turned their life around).

One consequence of pardoning the guilty is that pardons do, unfortunately, become political. The pardon of Richard Nixon by Gerald Ford, or the commutation of Scooter Libby's prison term by George W. Bush, and the too numerous pardons given to campaign contributors are prime examples. In the race for the Republican presidential nomination Mitt Romney has accused Mike Huckabee of granting too many pardons and commutations, and Huckabee has accused Romney of granting too few – laying particular blame over his twice refusal of a pardon for Anthony Circosta, a decorated military officer who upon his return from Iraq was unable to pursue a career in the police because a conviction relating to an incident with a BB gun as a 13-year-old resulted in a felony conviction that prevented his obtaining a gun licence.

President Bartlett commuted the sentences of 35 people whom he believed were treated too harshly by laws specifying mandatory minimum sentences for various drug offences in the episode of The West Wing through which I found the quote that begins this article. You might disagree with the decisions made, but these are times when the consideration of mercy make sense. There is basically no mechanism in New Zealand through which mercy can be shown (although in certain circumstances, minor offenders can have their records clean slated).

Similarly, our criminal appellate system is not well set up to inquire into the innocence of convicted offenders. Its focus is fixing up mistakes made during the trial - when new evidence arises, or old evidence is called into question, it's highly likely that appeals will already have been exhausted, and getting an extra appeal is incredibly hard. Although the Courts have long had the power to overturn convictions where the jury just got it wrong, until very recently the Court of Appeal have tended to treat this very narrowly: rarely upholding any appeal on the ground that 'it cannot be supported having regard to the evidence'; often holding that where there is any evidence that would support a conviction, a jury's finding should be untouched.

The Royal prerogative of mercy, exercised on the advice of the Minister of Justice, is basically all we have. Two years ago, retired High Court Judge Sir Thomas Thorp called for a specialist tribunal that would enquire into miscarriages of justice. It was not an outlandish suggestion: consistent with growing international recognition of both the frequency of miscarriages of justice, and the utility of having potential miscarriages reviewed by an independent body.

Those who have been falsely convicted don't want mercy, they want justice – and an acquittal is better than a pardon.

I'd have thought it self-evident. We pardon those whom we think deserve forgiveness. We commute the sentences of those whom we think may not deserve complete forgiveness, but have been punished enough. We apologise to those whom we falsely convict. Requiring those who assert they have been wrongly convicted to beg for mercy is fundamentally illogical.

This isn't about whether a particular cause célèbre should have been acquitted, but whether they should be given an appropriate forum in which to make their case. Ad hoc justice, granted through a Royal prerogative, isn't a solution. Not only is the current system not working well, it doesn't even make sense.

In the furore over law and order is it too late to ask for a proper mechanism to pursue justice?