Legal Beagle by Graeme Edgeler


MMP Review: Trusting Voters

The Electoral Commission has proposed a couple of minor changes to the operation of our voting system, but mostly, it's steady as she goes, with the Commission recommending no change to the rules which allow MPs to be both list and electorate candidates, or which allow list MPs to contest by-elections, and not proposing any strengthening of the requirement for democratic processes to be used in the nomination of party lists.

Kiwiblog's David Farrar is disappointed by this decision:

However I think they should have recommended greater internal democracy measures for party list rankings, and should have proposed either not allowing List MPs to contest by-elections or indeed even abolishing by-elections (which they talk about but take no stance on). Also no movement on dual candidacy means that the issue which most upsets people the most in my experience, is not dealt with.

The words missing from David's post, which got me thinking enough to write this piece are "is not dealt with ... by legislation". Simply because the law won't require parties to have greater internal party democracy, doesn't mean they will be prohibited from doing so. Because, even absent a statutory mandate, these are all things that parties can adopt now, and if it is something a large portion of voters really want, one or other party could simply adopt this themselves, and then shout it from the rooftops.

On this, the Commission seems to be taking the admirable view that voters aren't stupid. And we're not. Voters who care that a party is protecting "useless" electorate MPs with high list places will be less likely to vote for them. And voters who didn't care enough to take notice before the election will notice after the election that the MPs that party now sports aren't very good, which will mean it will suffer at the next election.

The solution to David's concern isn't legislation, but the market. And I like the market. Like every other voter, I get to decide what is important to me when choosing the party and candidate worthy of my support. I like that.

If the concerns are as widespread as David seems to think, a party that changes its approach will gain support. Its leader will be able to go on TV, and its candidates will be able to public meetings, and say "we're selecting the best candidates: people with a strong electorate focus for our electorate candidates, and specialists who bring important skills as our list candidates", or "our Party list was selected by thousands of our members from right around the country. It represents all of New Zealand, and is filled with people who will stand up for you, because if they want to be high on this list, they won't have to keep party leaders happy, they'll have to keep on the side of the thousands of ordinary Kiwis who vote for our list."

It's this market which David used when he sensibly opposed calls by the Taxi Federation for a law change requiring taxis to have security cameras:

And even if a few companies don’t implement cameras, then their drivers can choose to work for another company.

It’s sad that the NZ Taxi Federation thinks it needs a law passed, to be able to put security cameras into cars. Why don’t they just get on and do it.

Even if a few parties don't adopt proposals to allow their members to have a direct say in selecting list candidates, then their supporters can choose to vote for another party.

It's sad that a party activist thinks there needs to be a law passed to enable party members to have a say in party lists. Why don't parties just get on and do it?

Few people know how political parties select their lists, but I get the feeling that a lot of only mildly political people are aware that the Green Party involves its whole membership in a way that other parties don't. And that's something the party likes to tell people about. Other parties are more than capable of allowing their membership a greater role in these sorts of decisions.

And its even something that party members can force on parties, either through party elections, or constitutional amendment. I believe David -although no longer involved in the administration of the party - is still a National Party member in good standing. If he believes the National Party would elect a stronger slate of MPs, or govern more effectively, or be more electorally acceptable, or have better internal policy discussions with a list that was first subjected to a publicly-announced list ranking vote of ordinary National Party members, well, the National Party has an internal procedure for amending its rules, and he is more than capable of submitting a proposal for change. A number of the arguments in favour of positions David is advocating are compelling, but there's no reason he needs to convince the Electoral Commission and Parliament to impose this rule on everyone, he can simply start with convincing enough people in the party he belongs to to gain the advantage for themselves.

At the Mount Albert by-election following former Labour Leader Helen Clark's retirement, David showed just how this political market could be used - Patrick Gower and Tim Watkin both credit his raising of the "Tizard Effect" as influencing Labour's decision not to nominate a list MP as its candidate. We've had a few by-elections since we adopted MMP, and quite a few of them have included list MPs, but never has a list MP won. And if it some point one does, that MP will have been elected by an electorate in full knowledge of the consequences, and happy enough with them. The Electoral Commission notes:

No list MP has been successful in a by-election yet. Whether one is ever to be successful is a matter the Commission suggests can safely be left in the hands of voters.

If enough people feel as David does over dual candidacy, or party leadership having too great an influence over list placements, the parties which refuse to meet voter concerns will suffer. Not unlike the taxi companies which refuse to provide cameras to protect their drivers and passengers.

The market usually works. And I welcome the Electoral Commission view that a lot of these details are better left to voters. Who mostly aren't stupid, and do know what they are doing. Although one thoroughly awesome quote from the Commission shows they aren't quite convinced of the intelligence of every one of us:

Submissions talked in terms of list MPs being ‘unelected’, ‘appointed’ by parties or that they were the Parliamentary representatives of parties and accountable to them rather than the electorate.

This is not the case. Parties do select the candidates on party lists, just as they also select their electorate candidates. List MPs are elected by voters through their party vote from party lists lodged with the Electoral Commission on Nomination Day, published on the Commission’s website, provided to every elector in their EasyVote pack, and available for inspection in every voting place. That some voters choose not to avail themselves of the information readily available to them in party lists does not alter the fact that list MPs are elected.

Parties with procedures that select bad lists, elect poor MPs. And even if we don't know that before the election, we find out over the term of the Parliament afterward. I trust voters to look at MPs and decide who is worthy of support. And even if a party can bluff its way through one election with some MPs whom, on balance, a lot of voters might think are poorer choices, such parties suffer in the long term. And if they don't, it might just be because I'm not the best person to decide who should represent a constituency that I'm not part of, or know little about.

I don't agree with everything the Commission has proposed, but I welcome its vote of confidence in the New Zealand voter. On these issues at least.

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