Legal Beagle by Graeme Edgeler


Election '23: The Special Votes

The 2023 General Election has a preliminary result.

The preliminary result is mostly meaningless from a legal standpoint, but we don’t want to wait two weeks to hear some number, so we get a rough and ready count of the ordinary votes: those cast by people whose name appears on the printed electoral roll who voted at a voting place designated for their electorate (including during advance voting).

The official count is still to happen. They’re more careful with that, and there's a lot of cross-checking. For those who enrolled on the day or just before, they do all the normal checks before even looking at their vote (if you said you were born in New Zealand, has Births, Deaths and Marriages got a record of you? Can Immigration NZ confirm you immigrated, and whether you have a visa which allows you to stay here? Etc.). And remember when they put a little line next to your name on the copy of the Electoral Roll? Well, they compare the copy of the roll used by the vote issuer who handed you your voting paper with every other copy of the roll used by other vote issuers and in other voting places and check that no name has been crossed off twice. And the handful that have will be investigated (sometimes it’s simple error: the rolls show Abby & Dan White voted near their home & Dan also “voted” near Dean White's home, who “didn't vote”).

The official count also includes the counting of special votes. Special votes are:

  • votes cast overseas;
  • votes cast by people who enrolled after the printed electoral roll was closed (including during advance voting or on election day itself);
  • votes cast by people on the unpublished electoral roll;
  • votes cast on election day (or during early voting) by people voting at a voting place not designated to serve their electorate;
  • votes cast by the telephone dictation service;
  • takeaway votes; and
  • votes cast by people who are not on the electoral roll, who thought they were enrolled.

This election there are a lot of special votes. The most ever. I said this three years ago as well. The Electoral Commission estimate is that there are 567,000 special votes, around 20% of all votes. The estimate is always wrong. In 2020, the Electoral Commission estimated there would be 480,000 special votes. They ended up counting 504,621.

We do not know what electorates special votes are intended for – the Electoral Commission know where they were cast, but over the coming days, local returning officers will be sending the votes to the returning officers of other electorates, where they will be checked, and if valid, opened and added to the official count.

Historically, the voting patterns of those who cast special votes differ from those who cast ordinary votes. Since the 2011 election, following a law change that meant early votes wouldn’t be treated as special votes, special votes have tended to favour left-aligned parties. This seems likely to continue. In 2020, National did ~22% worse on special votes than on ordinary votes, and Labour 8% better. The Greens do better still at 18% better, but Te Pāti Māori did 66% better on special votes.

The numbers will be different this time but as we don’t have anything better to go one, using the same rudimentary method I use each election (assuming the variance in special votes is the same size as it was at the preceding election), along with the Electoral Commission’s estimate of the number of special votes at this election, I estimate the following final result (only parties over 1% assessed):

                                    Preliminary                             After special votes

                                    Vote share       Seats            Vote share       Seats

National                     38.99%          50                    37.78%          48

Labour                        26.85%           34                    27.88%          35

Green Party               10.78%          14                    11.38%           14

ACT                               9.00%             11                    8.68%            11

New Zealand First   6.46%           8                       6.41%            8

Te Pāti Māori             2.60%             4*                    3.03%            4

TOP                               2.07%             0                       2.23%            0

New Zealand Loyal  1.16%             0                      1.31%             0

Making the heroic assumption that the party vote specials will swing exactly the same way as they did in 2020, that’s National down 2 seats and Labour up 1. The other seat National drops would go to Te Pāti Māori, meaning that they may not cause the overhang that the preliminary vote suggests they will. That’s a Parliament where National+Act = 59 seats out of 120, or 60 seats out of 121 if the Port Waikato by-election goes as expected.

Unlike in 2020, the overall shape of special votes isn’t highly sensitive to the number of special votes – the simulation results in the same change in seats from 211,000 special votes, all the way up to 652,000. The exact details will be wrong but I’m a little more confident that I was three years ago. But, this is still a very rough estimate, made more fragile with the closeness of a couple of the Māori seats.

Individual seats are even harder to model: we have the same basic idea – the left do better on special votes, and Te Pāti Māori better still – but we don’t get given an estimate of special votes expected in each electorate (the Electoral Commission knows where they were cast, but doesn’t estimate where they will go).

But I’m going to give it a very rudimentary go anyway. The special votes frequently change a close electorate, but the possibility that Te Pāti Māori may cause an overhang means the overall shape of Parliament is up for grabs in a way it isn’t usually. Having never really done an electorate special vote estimate before, these assessments have even more caveats than my party vote assessments, but:

Tāmaki Makaurau

Labour’s Peeni Henare has 41.4% of the candidate vote in Tāmaki Makaurau, while Te Pāti Māori’s Takutai Tarsh Kemp, 38.7%, with a margin of 495. In 2020, Henare got 41.77% of the ordinary vote and 38.5% of the special vote. John Tamihere, the Māori Party candidate got 36.82% of the ordinary vote and 38.82% of the special votes. Occurring again, the gap closes to Henare at 40.7% and Kemp with 39.1%, and a margin of approximately 352.

Te Tai Tokerau

Labour’s Kelvin Davis has 39.1% of the candidate vote in Te Tai Tokerau, while Te Pāti Māori’s Mariameno Kapa-Kingi has 36.7%, with a margin of 487. The two were also candidates in 2020, where it was not close. In 2020, Davis got 58.8% of the ordinary vote and 50.1% of the special vote. Kapa-Kingi got 25.1% of the ordinary vote and 27.9% of the special vote. This disparity, if replicated would substantially close the gap, leaving Davis on 37.8% and Kapa-Kingi on 37.6%, with a margin of approximately 54.

I’m making no predictions at all on this - I haven't looked back at 2017 to see if that was any different, and I'm not sure it would give me much more confidence (currently low) anyway. I will say that there’s enough here to follow with interest, and that it is possible that Te Pāti Māori picks up an electorate, which would cause an overhang.

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