Legal Beagle by Graeme Edgeler


Before the fall

In a week, the Electoral Commission will release a proposal paper in its Review of our MMP voting system.

I'm a big fan of this idea. I don't expect the Commission will make any major errors, but giving themselves the opportunity of avoiding making the type of idiotic mistakes made by the Royal Commission on Auckland Governance is eminently sensible. And given the ownership of our electoral system that we as citizens should have, it is a good approach to let us make our views known before the proposals become recommendations.

After the release of the proposal paper, approximately four weeks will be allowed for further written submissions, which the Commission will take account of before releasing its final recommendations.

I have no inside knowledge of the Commission's thinking, other than what might have gleaned from reading most of the 4000 public submissions, or sitting through around half of the two days of oral presentations the Commission heard in Wellington. I will hopefully cover the Proposal Paper in some detail, but with a week to go, I thought I'd make an educated guess as to what the Commission will and will not propose:


I'm going to go along with everyone else here, and predict that the Commission will propose dropping the party vote threshold to 4%, and removing the one-seat exception. I don't rule out its going to say 3%, but would be very surprised with anything lower than that. The one-seat rule can increase proportionality, but I'm picking the Commission will consider its benefits are substantially outweighed by its problems.

Dual candidacy

This is the one topic on which I have almost no doubts: I'm almost certain that the Commission will recommend the status quo, leaving it up to voters to support or punish any party which chooses to protect weak or endangered electorate candidates with high list placement.

List MPs contesting by-elections

This is related to dual candidacy, but not as clear cut, I don't think the Commission will propose banning this altogether (by requiring list MPs to resign before contesting a by-election), but it could well make some recommendations clarifying or changing the process by which a new list MP can enter Parliament if a list MP wins a by-election.

Ordering candidates on party lists

With our single nationwide list (which the Commission won't propose changing), I'm predicting the Commission will think that allowing voters to re-order party lists would be too complicated or confusing for what little benefit it might bring. The Commission will, however, recognise public concern about centralised control of party lists, which I believe it will seek to allay by proposing strengthening the requirement for internal party democracy. It will suggest that at the very least parties should hold internal votes of all (or close to all) their members, in the process of list-ranking (although the result won't be binding).


I may be out on a limb here, but I think the Commission will propose abolishing overhang, which occurs when a party wins more electorates seats than its overall party vote would entitle it. This proposal may be tied to the removal of the one-seat rule, which would either increase, or complicate the overhang. That said, one of the advisers to the Commission is Professor Nigel Roberts, and he does love overhang :-)

The ratio of electorate seats to list seats

This could be the bolter. I suspect the Commission will acknowledge the slow reduction in the number of list seats, but will note it won't be a concern for a very long time. That acknowledged I think that if the Commission is going to make any unexpected recommendations, it will be here. I wouldn't bet on it, but I wouldn't be too surprised were the Commission to recommend a change to the from the current 70/50 split to an ~80/40 split. And although the Commission isn't looking at the size of Parliament, it may also suggest consideration is given to imposing a floor below which the proportion of list seats should not drop, so that if the North Island population growth continues to be more rapid than South Island growth, some time down the track, the size of Parliament will increase, like it did under first past the post.

Other things

I don't think the catch-all "other matters" will play a much of a role in the Commission's proposal paper, although it's possible the Commission will present a few minor surprises (another advantage of having a second round of submissions is that people will be able to make their views known).

I doubt the Commission will propose that any changes to MMP should be put to a referendum, but it could recommend that some more of MMP should be entrenched, and it's likely a few minor points will make it through, perhaps recommending an increase in the electorate tolerance to 10%, and a tidy-up of some of the anomalies in our MMP system. The Commission may also take the opportunity to re-iterate a few of its recommendations from its Report on the 2011 Election, like the recalibration of list seats after election petitions.

The Commission isn't going to adopt all my proposals, and will probably surprise me on one or two things, but it won't surprise you to know I've been counting the days since I realised there were four weeks to go. Just seven more sleeps.

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