Legal Beagle by Graeme Edgeler


Infrequently asked questions

Nigel Roberts has talked about how there were two things he wanted to see under an MMP Parliament: a government losing a confidence vote in the House, and a party causing overhang. He hasn’t (yet) gotten the former, but the Māori Party caused an overhang in both 2005 and 2008 (the beneficiaries of the overhang were National and Labour in 2005, and National and the Greens in 2008).

I’m not sure whether overhang was something he always wanted (I suspect so), or whether it arose out of his experience, but he has said that one of the questions he frequently got asked after explaining our MMP system to foreigners (I assume with a particular interest in politics) was “what if a party wins more electorates than it’s party vote would entitle it to?” The answer, in New Zealand, is overhang, which he then told them about finally got to see.

But overhang is now well-known, and the frequently asked questions are answered elsewhere and by other people.

I bring you some of the infrequently asked questions:

Why doesn’t National/Labour split into two parties – one that only contests the party vote, and one that only contests the electorate vote, causing a deliberate overhang and enough disproportionality to win an election despite losing?

Because this isn’t Italy, and voters would punish them for it. I’d never vote for them again. I’d encourage everyone else to make the same promise. Second, if it did work without annoying everyone, then the other parties would do it at the next election and we’d basically get supplementary member. And finally, while it would cause disproportionality, it wouldn’t actually cause overhang (I’ll get to that later).

Well, how would you surreptitiously distort an election?

Nominations having closed, I don’t feel too bad announcing this one more broadly now.

My favoured method involves getting a terminally ill person (perhaps more than one, just to be “safe”), to run in the anchor electorate of a sub-5% party (e.g. Epsom). If an electorate candidate (even an independent) dies between the close of nominations, and the close of voting, the election for that electorate is cancelled (resulting in a by-election), and only the party votes count. That seat couldn’t then be used to get that party (e.g. ACT) into parliament by avoiding the 5% threshold, potentially swinging a close election. And as that person doesn’t need to have any formal affiliation to a party (they might claim to be doing it as a stunt to raise awareness about some aspect of the health system), you might be able to get away with it.

This is a rule we really don’t need, and I’m guessing it’s a hangover from first past the post. Which, to be honest, doesn’t need it either. Given that you’re having an election anyway, let people vote, and if the dead candidate wins, then have a by-election.

What happens if one party wins 100% of the party vote?

If a party got 100% of the party vote, it would be entitled to 120 MPs. These MPs would be made up first from any electorates they won, and then from people on the party list who didn't win an electorate. As it is likely that they wouldn't have enough people on their list, there would be an "underhang" and some of the seats in Parliament would go unfilled for three years. Any electorate seat won by a party that was contesting the party vote would stay with that party as an overhang, and any electorate seat won by a party that was not contesting the party vote, or was won by an independent, would reduce the number of seats the 100% party was entitled to by 1.

And if Party A wins 100% of the party vote and Party B wins all of the electorates?

This is an extension of the last question. Party B would get its 70 electorate MPs, but the shape of the House of Representatives would be determined by whether Party B contested the party vote. If it did submit a list, Party A would get 120 list MPs (assuming it had enough people on its list). If it didn’t contest the party vote, Party A would get 50 list MPs. This is because seats won by independents, and MPs representing unregistered parties or parties that don’t nominate lists, are deducted from the overall number of MPs before list seats are allocated.

What happens if no party wins 5% of the party vote, and all the electorates are won by independents?

There would be no list MPs, only the 70 electorate MPs. This one isn’t even a technical possibility at this election, because there are only 13 parties contesting the party vote.

If a party gets 4% of the vote, and no electorates, but then wins a by-election during the term of Parliament, does it get any list seats?

No. Proportionality is only maintained at the general election itself. By-elections can disrupt proportionality, and have: the 2004 Te Tai Hauaruru by-election saw Labour go down an MP.

If a party gets 4% of the party vote, and wins one electorate, but it’s electorate MP later resigns or dies, does it lose its list seats?

No. This is even the case if the reason the electorate MP lost was because it was proved at an election petition that they stole ballots cast for their opponent, who actually won when they were found and counted.

Seriously? What would happen if some party deliberately stole the election by corrupt practices?

Any MP who was involved could be charged, and if convicted of a corrupt practice, would lose their seat (leading to either a by-election, or their replacement by someone else from the list). It’s possible the Courts would step in: even though the Electoral Act tries to limit the power of the Courts to invalidate a whole election, they might just try anyway. I think the more likely result is that the government’s support parties (assuming it wasn’t a single-party majority), and/or some of it’s non-corrupt MPs would cross the floor and bring the government down, forcing a new election. If the corruption was so serious, it’s possible the Governor-General could dissolve Parliament, whether on the advice of a PM under immense public pressure, or as an exercise of the reserve powers.

Can someone run in more than one electorate?

Not in respect of elections on the same day. You can’t run in two electorates in a general election, or in two by-elections if those by-elections are held on the same day. However an electorate MP can run in the by-election for a different electorate.

What happens if a list MP wins a by-election?

This one may actually be a FAQ rather than an iFAQ, but I’m including it anyway. If a list MP wins a by-election, they become the MP for that electorate. They don’t get two votes in the House, or two salaries. They can be replaced as a list MP for their party by the highest-ranked person on the party list who hasn’t been an MP during the term, if they resign. This hasn’t yet happened, and there are different interpretations. I’m of the opinion that the resignation would have to happen before the writ for the by-election was officially returned, but I understand that the Chief Electoral Officer is of the view that it that isn’t necessary. If they don’t resign, they’re not replaced as a list MP. If they don’t resign at the time, but then die a year later, I have no idea whether they get replaced once as a list MP and once through a by-election, or just through a by-election, the Electoral Act isn’t especially clear on this point.

What happens if the sole electorate MP for a sub-5% party dies or resigns?

There is a by-election in the electorate, but the party gets to keep its list seats. Again, this happens even if the vacancy occurs because of a corrupt practice.

What happens if an electorate vote is tied?

There is an automatic judicial recount. If the result is still tied after any recount, then the Electoral Commission determines “by lot” which candidate gets it. In the event that one of those candidates was a possible anchor MP for a sub-5% party, a fair bit could be riding on it.

How about a tie in the list vote?

This only matters for the last spot, but if the Sainte-Laguë quotients for the 120th position in parliament the Electoral Commission is again responsible for determining the matter by lot. However, it isn’t preceded by an automatic recount of the votes.

What if there’s a tie in the referendum?

No-one is allowed to ask for a judicial recount of the referendum votes, but if there’s a tie, “keep mmp” wins, and the Electoral Commission review of MMP will occur. If change wins, and there’s a tie for the top spot on the second question, well, that bit's non-binding, so it’s up to Parliament to decide what to do.

What if a party misses the deadline for nominations?

This has happened. The intending Green candidate in the Botany by-election was late with their nomination form. It’s not unknown to happen at general elections, although usually not by Parliamentary Parties. The Chief Electoral Officer was sued at the last election for rejecting someone’s nomination (he won).

In 2002, the Libertarianz fronted at the Chief Electoral Office with their list nomination, and the $1000 deposit, not long before nominations closed. Only it was in (I think) cash. Which isn’t acceptable. It has to be a cheque, which was offered, but wasn’t enough, because a personal or party cheque isn’t allowed either. The Electoral Act requires that “The deposit must be in the form of a bank draft or bank cheque”. What is a bank draft? I believe it’s just a bank cheque, but someone might like to chime in with a technical difference.

What would happen if National or Labour stuffed up? If they were in government, they could recommend to the Governor-General to extend the time or validate their nominations. If they were in opposition, they could ask the government to recommend it, but if this didn’t happen, they just couldn’t run. Hilarity would ensue.

Why do the people of Epsom like ACT so much?

They don’t. Indeed, more Epsom voters gave their party vote to the Greens at the last election than gave their party vote to ACT.

How is it that the Conservative Party can afford all those billboards and leaflets, without having to declare a donation of more than $30,000 from wealthy party leader Colin Craig?

I anticipate that he made a donation before the party was registered. This is one of the few instances where “loophole” can be legitimately applied to a law. Someone should ask him anyway.

Feel free to ask your own, and I’ll do the best I can!

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