Legal Beagle by Graeme Edgeler


Voting Referendum: Jus' Sayin'

There’s a referendum this year on our voting system, and the Electoral Commission is readying its public information campaign. Orange Guy even has a few videos (MMP, FPP, PV, STV & SM).

I should perhaps include *spoiler warning* because they won’t air on TV until Sunday!

I’m readying my bit for the campaign too. The draft of my “what voting system should I choose” tool (chocolate fish for the person who can come up with the snappiest name) I announced at the Great Blend a couple of months back is done, and we’re in the process of getting it into a usable form. Things seem to be happening.

A year ago I proposed that if the result of this referendum was for change, that the Electoral Commission should be tasked with making the first draft of the alternative system. It had support from across the political spectrum, but the Electoral Legislation Committee, and its Ministry of Justice advisors didn’t like my idea, rejecting it because it was a non-binding referendum. I wasn’t proposing to change that, but oh well.

More disappointing, however, was that the Committee also made some design choices on the alternative systems. Without public input. Or the public really knowing that they were even considering doing it. They decided, for example, that if we go with Supplementary Member (SM), there would be 90 electorates and 30 list seats. They decided that if we go with Single Transferable Vote, then people will have the choice of voting “above the line” (adopting a party’s voting order without having to number all the candidates yourself). But they left quite a bit open for decisions after the referendum.

So I’m somewhat surprised that the Electoral Commission has decided to fill in the gaps. I suppose I should be pleased, but given that Parliament chose not to do that when presented with the option, it does seem a little presumptuous. My particular concern is with Orange Guy’s STV video:

Now, all the big details are done right. But starting from 1:03, we have the following quote: “but there is still one seat to fill, so the lowest polling candidate is eliminated and those votes go to his voters second choices who are as yet unelected…”. Now that is one way to count the votes in an STV election, but it’s not the way that is described in the Electoral Referendum Act, and nor is it the way we use in local body elections that use STV (as the government’s own website shows). And the simple point is that STV can still be explained – and the video would still make sense – if the last five words I quoted were just left out.

I’m pretty sure I haven’t read too much into those words, because the Electoral Commission’s leaflet (.pdf) makes it crystal clear that in the Commission’s view that under STV, the votes of eliminated candidates “are transferred to the unelected candidates ranked next on those votes”. Which is just not how we do STV elections in New Zealand, or how Parliament said STV general elections would be done if we were to have them. In New Zealand, the second preferences of eliminated candidates can go to already elected candidates (and are redistributed from there). This can make a difference. My local council election in 2007 would likely have seen councillor Jack Ruben remain and newcomer Jo Coughlan out if the process the Electoral Commission describes were adopted instead of that detailed in our Local Electoral Regulations.

Big deal? No. In the context of the advertising campaign, it’s a largely irrelevant detail. It’s not a fundamental feature of the STV system, or something that will influence anyone’s vote. But I’m left wondering why they felt the need to say it at all.

When contacted for comment, the bright orange spokesman for the Electoral Commission advised “I've checked in with the Electoral Commissioner and he's come back to me to say the Electoral Commission is confident that the explanation of the STV voting system is fair and accurate. If there were to be a follow-up referendum and STV were to be the alternative option to MMP, Parliament will decide the precise details for the STV count process.”

Which just leaves me more perplexed: if the Electoral Commission knows that this is one of the things Parliament will decide in the future, why act like it has already made a decision? Especially when Parliament has already said (in a non-binding way) what happens to the votes cast for eliminated candidates, and the Government has said what happens in the STV elections we already have. And that differs from what the Commission is saying now.

I also note the STV video states that under STV, each electorate will have between 3 and 7 MPs. Parliament left this bit silent too, but in the STV leaflet the 3-7 MP range is noted only as “likely”. The Royal Commission on the Electoral System did recommend (.pdf) that if we were to use STV for general elections that most electorates would have 5 MPs, but up to 20% of electorates could differ from this, having as few as 3 or as many as 7 MPs. The Electoral Commission’s suggested numbers for the electorates would not meet the Royal Commission’s criteria, and it seems odd that the video says “New Zealand is divided up into about 27 electorates”, while the example given in the leaflet is for 28 electorates. Jus’ sayin’.

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