Legal Beagle by Graeme Edgeler


Referendum Fact Check 4: The MMP Debate

Radio New Zealand and TV3’s The Nation have kicked off the referendum campaign with broadcast debates on the voting system. You’re able to catch up with The Nation on-line, and you can listen to, or download Radio New Zealand’s Insight special (or .mp3 here).

I hope to fact check The Nation if I get time, but I am starting with Radio New Zealand’s debate, which was hosted by Phillipa Tolley, and Julian Robins. All up I think it was a good debate, but it ran into a flaw I’ve noticed throughout the campaign, and the question I’d like to see each supporter of any system on offer answer always goes unasked. That said, I don’t blame Radio New Zealand for not opening it up to audience questions, because the results are rarely edifying.

The debate involved (former?) politicians Jim Bolger, Michael Cullen, Jeanette Fitzsimons, and Ruth Richardson, along with electoral systems expert Professor Nigel Roberts and pro-MMP and anti-MMP lobby group spokespeople Sandra Grey and Jordan Williams.

This being a fact-check, I do have a few matters to raise, and we start with Jim Bolger.

Jim Bolger (JB): You would have the issue of a big list which is substantially controlled by the party organisations, which is not that democratic.

That’s an unfortunate admission from Jim, because the Electoral Act requires that parties have democratic processes for the selection of candidates. It doesn’t give an explicit consequence for a failure, but I anticipate the Electoral Commission could refuse or revoke a party’s registration.

Of course, many people are concerned with the lack of voter influence over the list, but it should be noted that one of the questions the review of MMP will look at (which will occur if the “keep MMP” option gets at least half of the votes in the first question) is whether voters should be able to influence party list order. Of course, whether Parliament would agree to such a recommendation is another matter.

JB: And you would have the problem of electorates voting out a candidate and that person comes back in again on the list.

Unfortunately for Jim (and this is one of those common flaws that has been present throughout the campaign) he spends much of the debate making arguments against both the system he wants rid of (MMP) and the system he wants to replace it with (Supplementary Member). Both MMP and SM have list MPs, and the possibility that a candidate may be rejected or voted out by an electorate will come back in anyway.

Whether candidates should continue to be able to run on both the list and in a constituency is another matter that the Electoral Commission review of MMP would consider.

Michael Cullen (MC): MMP is clearly fairer in that it gives representation to minority opinions within the public at large which previously were unrepresented even if they gained as much as 20% of the vote.

This has never happened. Yes, under first past the post, supporters of minor parties were denied any representation in Parliament following elections where they got lots of votes, but never when they got as high as 20%. Every party that has received 20% of the vote or more in a New Zealand general election was represented in the Parliament that followed (often under-represented, but never totall unrepresented).

MC: I think the concerns at that time were partly that some of the claims made for MMP were patently untrue that we would have the development of pure lovely Northern Europeans consensual politics – which of course has since broken down in Northern Europe as well – because society generates that nature of the politics, not politics the nature of your society.

This bit isn’t a fact check, or even one of those instances where I add context or information. It’s just a really good point that you might miss if all I was doing was transcribing the bits where I felt something was wrong or missing.

Michael Cullen’s point is one I’ve made in other contexts. Our electoral system and Parliament operate within our political culture, not above it. But just as we don’t have a consensual political culture, we also don’t have a strongly divided one. And just as adopting MMP didn’t mean we’d adopt northern European consensus, having a highly proportional system (e.g. by lowering the threshold) wouldn’t cause our Parliament to become as fractured as Israel’s or Italy’s.

Ruth Richardson (RR): The mission is: what is the best form of representative government that we can get? And for me the test of that is: does the system allow a government to play a strong hand in advancing the country’s economic and social welfare? ... The strength of first past the post is that it does allow a government to govern, and it gives much more power to the people because they can kick out a government that doesn’t perform.

And this is the other issue I’ve been having with much of the argument so far. People here, and elsewhere made lots of arguments that didn’t lead to the conclusions they were reaching (or at least didn’t lead the whole way).

The ability of a government to enact its policies is a feature that many consider an advantage of first past the post, but it is also just as much a feature of preferential vote, which is basically the same as first past the post, except each member of Parliament is supported by a majority of the voters in their electorate, and not just the largest minority.

With “backdoor MPs”, both MMP and supplementary member can make it difficult to throw out individual MPs, but kicking out governments is something it’s done quite well with so far. The same cannot be said for first past the post. New Zealand voters tried kicking out a government in 1978, they tried kicking one out in 1981 and they tried kicking one out in 1993. And first past the post got in their way each time.

If you want a system where being able vote out MPs and governments is your primary concern, and one in which the government is likely to command the parliamentary majority necessary to act decisively, then you want preferential vote. And absolutely nothing Ruth Richardson argued for the entire night contradicts the conclusion that this should be her favoured option.

The voters of Wellington well know that this is the case. In the 2010 local body elections, most Wellington voters wanted rid of three-term mayor Kerry Prendergast. First past the post would have seen her return, but the preferential system in use for Wellington’s local body elections saw her replaced with someone a majority of the voters were happy with. And Ruth, like everyone else, doesn't get asked the question: why do you support X, and not Y, which from what you've described meets your desires just as well as your favour system?

Jeanette Fitzsimons (JF): … the key thing about MMP is it is the only proportional [system] … no other system is proportional.

Panel expert Nigel Roberts corrected this one during the debate itself, observing “I should in answering this take slight issue with what Jeanette has said which is that there is no other system is proportional. [Single transferable vote] is regarded as a proportional representation system. Probably not as proportional as MMP, but it would be, throughout the world, classified as proportional we see that for example in Ireland, we see it in the Australian Senate: it has proportional results.”

JF: I think the balance of having half MPs elected from geographical constituencies and half elected from national constituencies on the grounds of policy and vision and platform is about the right balance.

While the Royal Commission on the Electoral System recommended a half-half split between electorate seats and list seats, it never happened (65-55 was as close as it got) and it’s drifting further apart with demographic changes. The ratio of list seats to electorate seats is something that the Electoral Commission review of MMP would consider.

Jordan Williams (JW): MMP is hardly fair, when one man, Winston Peters, has chosen who the government is twice now out of the five MMP elections we’ve had. So … if you voted for Winston Peters, your vote counted more. We don’t think that’s fair.

Jordan has said this before, and I think I’ve called him on it before too. Winston Peters did not choose the government twice. In 1996, our first MMP election, he did get to choose between National and Labour. In 2005, he made that stupid pre-election stunt pretending to play off Helen Clark and Don Brash with different coloured phones, but it never came to fruition. Even if Winston Peters and New Zealand First had joined National and ACT in voting against the Labour-led government, Labour would still have had the numbers. The only way National could have governed was if National had gotten ACT and New Zealand First, and United Future and the Māori Party all on board. And even had that happened it would hardly have been Winston deciding who governed. It was never going to happen.

Also, if fairness between voters is going to be the concern of Vote for Change, it’s more than a little odd they’re pushing for supplementary member, which gives voters in marginal electorates greater influence over the election outcome. If they want fairness between voters, while avoiding the problems they've outlined, they'd be supporting single transferable vote.

JW: The trouble with MMP is that if a party loses a constituency seat it doesn’t actually matter because they merely receive another list MP. So what that means is that a person in a marginal seat instead of thinking “Ooh, I could lose my seat if my party does this, I’d better jump up and down and ensure that they don’t and stand up for my constituency.” Instead, they think under MMP “ooh, I could lose my seat, I’d better do what my party wants…”

Julian Robins (JR): “those marginal seats are one thing, but there’s also a whole bunch of safe seats…”

JW: “You have that under any system. If you’re number five on the Labour Party list, you can’t boot them out. If you’re in a safe National or safe Labour seat on the other extreme of MMP, you can’t boot them out.”

I don’t believe this is true under STV. Under STV, all electorates are marginal: there will be seats where National (or Labour) is stronger, but there will still be the question of whether it will win four seats out of five and Labour one; or National three, ACT one and Labour one; or National three and Labour two. And if there’s a Labour or National MP who has become personally less popular with the electorate, it can vote them out, while still supporting the party’s other candidates.

JR: Is that the feedback you’re getting from the public meetings you’ve been doing, that the major concern is around accountability and about the list MP coming back after losing an electorate.

JW: Yeah. The main one is that list MPs sneaking back in on the party list.

Which makes the decision of the Vote for Change group to announce its support for Supplementary Member very odd indeed. If the main concern people express to you with MMP is MPs coming back through the list after losing an electorate, then proposing to solve its problems by instead adopting a voting system in which MPs can come back in through the list after losing an electorate is confused at best.

Phillipa Tolley (PT): If I could just remind everybody at this stage that we are listening to an Insight special debate on the referendum on the electoral system…

A little nit-picky (it’s mostly here because I haven’t previously made the following point, and I’ve been meaning to make it), but the Electoral Commission is trying to call this a referendum on the voting system. Which is what it is. It’s only about the way we vote, and the electoral system is much broader. The Royal Commission on the Electoral System looked at the voting system, but its discussion on the voting system – whether we should change from first past the post, what an MMP system might look like etc. took up just one chapter. It also looked at the term or Parliament, the number of MPs, political financing, referenda and Māori representation. Those are all aspects of the electoral system, and this referendum just isn’t about stuff like that.

JF: I’m tempted to say “Winston Who?”, because, actually, Winston has really suffered electorally for what he’s done. If you look at the way he kept the country waiting for 10 weeks, and pretended he was negotiating with two parties in 1996… His numbers in Parliament were reduced from 17 to five at the following election.

It wasn’t 10 weeks. Indeed, it was less than nine.

JB: Let’s be honest, there’s all sorts of obvious agendas. Look, the Green Part wants MMP; of course they do, because that will get them a number of seats … and some of the small parties like ACT are desperately trying to do deals in Epsom and may work, may not and nobody’s raised that question: is that really what we want with MMP so you do behind the door deals to get somebody through on some desperate sort of please give my vote to somebody and soforth. I mean we have to quite straightforward on this I don’t think that’s a very open and democratic system either.

Leading me yet again to the question, if these are Jim’s concerns, why is he supporting supplementary member?

JR: And Jim Bolger, under the system that you are supporting, supplementary member, the smaller parties would become even smaller.

This is the general rule, but it likely wouldn’t be true in respect of all the small parties. In particular, because the Māori Party is in Parliament through electorate seats, a move to a system with more electorates may well increase its size. And under supplementary member the Māori Party might even qualify for a list MP.

JB: You can say that every system works … there’s absolute proportionality in countries like Israel and soforth and you get about 25 parties with single member parties in their Knesset and soforth.

The Israeli Knesset uses a nationwide list-only vote, but there isn’t absolute proportionality, and they shouldn’t have single member parties unless groups split up between elections. Knesset elections involve a vote threshold: it started at 1%, was later increased to 1.5%, and has now gone up to 2%. 2% of the vote (and probably even 1.5%) is enough to get a party at least 2 MKs.

RR: Professor Nigel Roberts has said quite correctly that it depends on your values. But I think we’re obliged to look at the evidence. This is a chance for us to look at how this has played out in fact. And I would argue that when you look at the evidence of successive MMP-style parliaments then the choices you might have expected haven’t played out that way. What I see is politics degenerating into reality TV shows, presidential style where brand and party matters for everything. Really no contestability of ideas within the ranks and a senior minister like Simon Power lamenting the fact that ideas don’t prevail over management … I want to see politicians rehabilitated as a vocation. I think they play a very important part in the country’s welfare and its prosperity. You rob the big parties of the quality of the debate; they all toe the line.

MC: I think here we’re in serious danger of remembering some kind of golden age which never existed under first past the post. … Ruth talks about strong government, she’s really talking about a particular kind of government doing certain things.

It was a nice point, and a fact-check all of its own, so I thought I’d leave include it for everyone. But I also don’t think it’s fair to say that when people like Ruth Richardson are pushing for strong government, they necessarily mean strong free-market-supporting government. She made the point that her views were the same whichever side one was on, and it was intelligently pointed out by something I read somewhere in the last week or so, that had we had MMP in 1935, Mickey Savage may not have had the numbers to introduce the welfare state, and may even not have been Prime Minister.

PV: What is the attraction over the other systems of STV?

Nigel Roberts (NR): … The advantage of STV is that it has multi-member constituencies, so you return more than one MP for an electorate. Of course, the advantage is in other eyes a disadvantage. Your electorate’s would be much larger, you have 120 electorate MPs from somewhere between say 24 and 30 electorates.

I think it is important to remember that is a system that actually gives, of all the five systems, it gives the voters the most choice because they can get to rank order they have just one vote but they can rank order that vote.

RR: isn’t it the case in Australia that the parties put out a “vote this way”, so the idea that people take the power in practice doesn’t play out?

NR: In Australia they do that, the parties do hand out how to vote cards on election day, something that couldn’t happen under current electoral law in New Zealand, but yes because there’s above-the-line voting where you can if you don’t want to go and say “I’ll vote 1 here, and 2 there, and 3 there” and in Australia I should add, and it’s very important to understand, in Australia it is compulsory to vote for as many candidates and express your preference. So if you’re in New South Wales and there are 127 candidates it’s an invalid vote if you accidentally put two 99s, or if you get to 126 and drop dead of exhaustion, so they introduced above-the-line voting in 1984 and the vast majority of senate voters, using STV, now use above-the-line voting which says “okay we’ll vote for this party” and in effect you accept the party order of preference. The important thing is in New Zealand, Parliament has already said that if we go to [STV] Ruth Richardson is right, yes we would have above-the-line voting as well.

My time fact-checking has been building to this point: where I get to point out that the great Nigel Roberts has mislead you all :-)

If you accidentally put two 99s on an Australian senate ballot paper listing 127 candidates in Australia, your vote can still be valid. While the standard rule is that you must rank each candidate, section 270 of the Commonwealth Electoral Act 1918 allows for some deviation: for example, if you make a mistake such that if you changed the numbers of a couple of them, you’d have ranked them all properly, then your vote is still valid. It has also been determined that if you rank all the candidates, except for one, then this counts as ranking them all (and this one applies in both the lower house and senate elections).

I would also note, but only for completeness, that Australian how to vote cards are handed out in respect of lower House elections, which use preferential vote, and which don’t allow the option of voting above the line. They can tell you how to vote in Senate elections as well, but they’d just tell you to vote above the line.

<small>I did consider the possibilty that Professor Roberts was describing New South Wales state elections, but they only require you to number 15 candidates (you can rank more if you want).</small>

JF: The ideas of having the voters ranks the party lists is initially quite attractive until you think well how would that work? Would the people who intend to vote for Party A actually have the opportunity to rank the list of Party B in order to make it as unattractive as possible? I don’t think you could do that.

There are a number of ways it could work, none of which are as stupid as the straw man Jeanette puts up to swat down. You would not be able to rank the list of party you didn’t vote for, and if we were to adopt open lists, it is likely that voters would have the option of indicating a number beneath their party vote. This number would correspond to a list candidate on that party’s list (which might be printed inside polling booths), and if a candidate got enough personal votes, they’d be pushed to the top. There are other ways to do it, but countries with open lists tend not to have a single nationwide list, so it’s unlikely we’d list everyone’s name on the ballot like some of them do.

JB: let’s look at another bit of the list manipulation that happens now when a member goes out of a party and they look at the list and they don’t like the next person on the list so they push that one aside, this has happened, this is not theory, then they push the next one after that and then say “oh the third one on the list we like” so let’s not pretend that the current lists works perfectly.

I don’t think anyone was suggesting that, but I just thought I’d note another instance of Jim arguing against both MMP and his favoured supplementary member.

RR: Which is the real problem with the review: it’s very undemocratic, it shows the power of the party at the expense of the people and Jeanette’s point about wasted votes, and Sandra’s point about wasted votes: if you’ve got a threshold at five and you get rid of the one seat list well then you’ve got 5% of wasted votes.

I simply have no idea what the first bit of this is getting at, and the second bit is so laughable, I just couldn’t not include it. That just isn’t how maths works, or how elections work. Just because there’s a threshold, doesn’t mean that anyone will get less than it, and just because there’s a threshold doesn’t mean that’s the limit of the wasted vote: the 1995 Russian legislative election had a 5% threshold, but a wasted vote of 45%.

PT: At this time in four weeks we will know not only more about the shape of the next government but will also have an idea of what choice voters have made in the referendum, although final results won’t be known until the 10th of December.

Having somewhat unfairly pinged Phillipa for something early, I thought I’d include this fantastic piece of entirely accurate nuance. On election day, the only referendum votes that will be counted are the advance votes (perhaps about 10% of the total). The others won’t be counted until after election day, and there appear to be no plans to release a preliminary count before the final results are announced. This is the type of thing I really don’t expect a journalist to pick up on, and that someone has, is a credit to them.

Finally, I’d like to congratulate Sandra Grey, who it appears I haven’t included above. I guess this means she didn’t say anything I’d feel the need to correct. Well done :-)

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