Legal Beagle by Graeme Edgeler

I forwarded my submission to the Electoral Commission MMP Review yesterday. Let me know what you think. You can make written submissions - which can be as little as a sentence or two - until 31 May.

Introduction

1. My name is Graeme Edgeler, and I am a Wellington lawyer with a particular interest in electoral law. I blog on the Public Address website (http://publicaddress.net/legalbeagle/), and many of my submissions are informed by posts or comments that have been made in discussions there. I can be contacted at Graeme.Edgeler@gmail.com.

2. I thank the Commission for the opportunity to make a submission on the Review of MMP, and look forward to presenting my submission in person. My submission addresses each of the matters raised by the Commission in its discussion document, and also addresses some other matters relating to the MMP voting system.

The Party Vote Threshold

3. I support the removal of the party vote threshold, or at a minimum that it is substantially lowered.

4. I do not believe that were New Zealand to remove the artificial threshold, that we would suffer the adverse consequences many fear:

• We have a long history as a stable democracy, with a vanishingly small extremist fringe;

• Our prior experience under first past the post, and to date under MMP, has created a strong party culture, focussed around two major parties;

• We do not have a history of a highly fractured political or cultural climate.

5. Countries with fraught elections and difficult political cultures tend to have very different histories to ours. New Zealand does not have in its living memory anything remotely like the Nazi Party’s rise to power; and our country was not set up to protect an oppressed religion, nor have we faced the existential threat as Israel has. These things have a profound effect on a country, which we have not experienced. We do not need to guard so strongly against the things that some other countries may fear when formulating their electoral systems, and accordingly, the arguments against which the right to be represented are to be balanced are much less compelling. This significantly strengthens the imperative to ensure that the voices of as many voters as possible are represented in the House of Representatives.

6. New Zealand is among the longest-standing democracies in the world. We have had a functioning party system for over 100 years, and our two major parties are both well into their second half-centuries. I believe that the New Zealand political system is mature enough that we could cope in the absence of an artificial threshold.

7. It may be that the time we have had with a 5% threshold has helped this, and that the absence of a threshold would have been destabilising at our first MMP election. However, I see no reason it would be particularly destabilising now.

8. Simply put, a lower threshold will no more make our Parliament a fractious one like Israel's than it would make us a de facto one-party state like South Africa.

9. I believe that the Electoral Commission's recommendation should be such as to ensure that we have the lowest possible wasted vote. This necessitates either a much lower (or no) threshold, or providing voters with the option to vote for a Plan B, a second choice should their first choice party not reach the threshold. The former seems the superior approach, although the latter would also be a welcome advance.

10. As well as disenfranchising many voters, a high party vote threshold:

• Distorts voter behaviour;

• Discourages voter turnout; and

• Encourages apathy among larger parties toward their base, who will likely never have anywhere else to go.

11. I favour the removal of the artificial threshold, and while I know I am not alone in this, I recognise that many will be strongly opposed to this course.

12. This opposition is often because of a concern that small parties under MMP exercise disproportionate power. While this is debateable, the solution is more minor parties, not fewer. Minor parties have greater influence if they are the only option for a larger party, or if they alone hold the balance of power, and can decide which of two alternatives governs. The more options a major party has, then less likely it is they can be held hostage to the whims of any one group.

13. Since the adoption of MMP, we have had a number of parties in Parliament with one or two MPs, and this does not seem to have posed any great stability problems. I can recognise that there is some legitimate benefit to avoiding a proliferation of small parties in Parliament: a large number of single MP parties could make governmental and legislative coalitions difficult to manage, but in effectively banning parties with one or two MPs, there is no need to ban parties that would have five or six MPs.

14. The Parliamentary Assembly of the Council of Europe has on several occasions considered the effects of different aspects of electoral systems on democracy:

In well-established democracies, there should be no thresholds higher than 3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in parliament and government.

15. It has also said:

Thresholds … have a significant impact on the representativity of an elected body. This question of utmost importance has already been discussed in the Assembly on several occasions and the Assembly’s position is clear: in stable democracies legal thresholds over 3% are hardly [ever] justifiable. There is no reason to bar certain groups of citizens (minor parties) from access to parliaments.

16. New Zealand does not presently have the balance right. Whatever the rationale for a threshold (stability, effective government, effective Parliament, or something else) it should not be so high as to preclude a serious attempt to break into Parliament from the outside. The 5% threshold has demonstrably failed in that regard.

17. It may be that New Zealanders consider themselves reasonably well served by our political options, but a threshold of 5% has proved – and is likely to continue to prove – far too great a barrier to the emergence of political alternatives. Unfortunately, a 4% threshold is likely to prove little better.

18. I can understand (and accept to an extent) a lot of the arguments in favour of having a threshold. I believe all of the serious ones can be met by having a threshold set at a level where the parties reaching it will be guaranteed to have at least 3 MPs – such a party is large enough to make enough of a difference in Parliament without being so small as to prevent their being effective advocates for their voters. A 2.5% threshold will meet this goal, guaranteeing that all parties in Parliament by virtue of the party vote will have at least three MPs.

19. I do not consider that any threshold higher than 3% can be justified. And I am both confident and fearful that if the party vote threshold stays as high as 4% or 5%, political innovation will be stifled.

20. Whilst I am proposing a threshold (if we are to have one at all) of 2.5%, and others are putting forward other numbers, I recognise that we are mostly just pulling numbers out of the air. I believe the Electoral Commission should closely consider the pros and cons of the whole range of potential thresholds, which is something the Royal Commission – which had a much wider brief – did not do (or at least did not do publicly in its report).

21. The Commission should investigate:

• What will it mean if we set it at a level where we can have single MP parties? How many are there likely to be? What will the likely effects be on government formation and the legislative process?

• If the threshold is at around a two MP level, how well will such parties be able to perform the work we expect of parliamentary parties?

• If a three-MP party is in the opposition, how frequently will it get to ask a primary question in the House? How many bills in the areas of legislation important to it will it be unable to subject to real scrutiny because its MPs are stretched too thinly? etc.

22. The Commission would also do well to consider whether lowering the threshold (or removing it entirely) will increase voter turnout.

23. In short, the Commission should decide at what level a parliamentary party is likely to be too small that its MPs will be unable to do a substantial amount of the work we would expect even a small party to be able to do in Parliament.

24. Perhaps if a party is so small that it can do almost none of the things we would expect of people representing our voices in the House of Representatives, the arguments in favour of thresholds have some meaning. If all that can be offered to the small groupings needed to elect one (or two) MPs is the illusion of effective Parliamentary representation, it may be legitimate to set a threshold at a level where we can have some confidence those who make it into Parliament will be able to be effective representatives.

25. Ultimately, the Commission should determine the size it considers a minor party is likely to be effective enough that the rationales for telling its voters that they can’t be represented at all fall away.

26. Even though we’ve had the 5% threshold, we have had parties in our MMP Parliament at every potential size for a minor party: ACT, Mana, the Maori Party, the Progressives, and United Future have operated as single MP parties; ACT, the Progressives and United Future have had two MPs; the Maori Party and United Future have had three MPs, The Maori Party has had four MPs; ACT, the Maori Party and New Zealand First have had five MPs; and the Greens have operated with six MPs.

27. Over such a short period, we’ve amassed quite a useful selection of case studies: of minor parties that have worked closely with others in opposition, and that have worked alone in opposition, those that have sat on the cross-benches, and others been in government. There is the data to assess the contributions they made, the level of representation they provided those who voted for them, and the concessions they’ve exacted (for good or ill).

 

28. Looking at the experiences we’ve had, one could quite properly conclude that a one-MP party can add to Parliament in a way that our democracy would have suffered were they not there. And even if the Commission wouldn’t quite go that far, I submit that by looking at our experiences with three MP and four MP parties it will be clear that those parties were able to do a lot on the issues important to those who voted for them.

29. As I said earlier, if we are to have a threshold, I consider 2.5% is the appropriate level. Reaching 2.5% of the vote for a new political force will not be an easy task, but it is attainable, and no party that reaches that level can be dismissed as a joke, unlikely to be able to operate effectively in our Parliament.

30. A threshold set at 4% or 5% will very likely not be within reach of any political force outside Parliament absent some crisis of confidence in our political system. A threshold set at too high a level will only have the effect of inoculating our current party structures from the full rigour of public scrutiny.

31. The Commission has a once in a generation opportunity to move our democracy in a more representative, more open direction. It should not be timid. If it considers the evidence, and reaches the conclusion that the likelihood of major negative consequences from abandoning the threshold is low, it should grasp the opportunity to recommend this.

32. Finally, if the Commission does recommend the total removal of the artificial threshold, it may nonetheless wish to consider whether to recommend that we adopt a modified form of the Sainte-Laguë system, such as that proposed by the Royal Commission. With the unmodified Sainte-Laguë system, a party could receive a seat while earning fewer than half the votes required to have fully “earned” a seat. It may be desirable to ensure that a party gaining a seat in the House gets at least somewhat close to support of 1/120^th of the voting population.

The One-Seat Threshold

33. I was a long-time supporter of the one-seat rule, which I saw as ameliorating some of the problems of our high party vote threshold. However, whilst the single-seat threshold does have the advantage of providing a more proportional Parliament, it also violates the principle that all votes should be of equal value, by giving voters in particular areas substantially more power than those in other electorates.

34. I do not believe that the one-seat rule is unfair in the sense that, for example, following the 2008 general election it allowed the ACT party 5 MPs, while the New Zealand First, which received more party votes, received none. It is not unfair that people who voted for ACT were represented commensurate with their share of the party vote. The only unfair aspect was that those who voted New Zealand First were not represented. Had ACT voters been denied their proportionate representation, the position of those voters who supported New Zealand First would have been in exactly the same: they would have remained totally unrepresented. Adding unfairness to ACT voters on top of unfairness to New Zealand First voters does not make the system fairer overall, it merely compounds one injustice with another.

35. But while that was not in itself unfair, what was wrong was that it was the voters of Epsom who had the power to decide whether the 85,496 people who gave ACT their party vote were going to be represented.

36. I recognise that there are other benefits of the one-seat rule: it reduces the number of single MP parties (one of the aims of a having a threshold), and can increase the effectiveness of Parliament by ensuring that the parties that enter Parliament are better placed to operate effectively. However, I am of the opinion that whatever the benefits of it, the substantial and disproportionate power it gives to an arbitrary set of voters outweigh any gain: it is fundamentally wrong that the voters of one electorate have the power to affect an election result to so great an extent.

37. Whilst I will address overhang in more detail later, I would note now that in the event that the one-seat rule goes, electorate seats won by parties falling short of whatever party vote threshold remains should not automatically be treated as creating overhang seats. If the provision to allow for overhang remains, and the one-seat rule goes, parties which win electorate seats should be included in the Sainte-Laguë calculation up to the extent that their party vote and electorate seats would allow: if the quotients each of their electorate seats would represent are in the top 120, these seats should not cause overhang.

Dual Candidacy

38. I have been wavering over my view on dual candidacy. A blog post I wrote to gauge others’ views has, I think, brought me around to supporting the retention of dual candidacy, although I look forward to reading other submissions to the Commission’s review, as I can see that a strong argument (preferably backed up by evidence) could easily change my mind.

39. Banning dual candidacy does have the potential to strengthen the relationship between local MPs and their constituents, by removing the backstop of a place on the list and tying the continuation of a member of Parliament in office directly to their continued support among the community which elected them. This could encourage such MPs to stand up – whether in public, or more likely, in caucus – for the views of those who elected them.

40. At best, however, that is only an argument about MPs in marginal electorates. As a ban on dual candidacy will encourage good candidates who live in the safe electorates held by other parties to seek to be list-only candidates, the quality of candidates opposing incumbent MPs in largely safe electorates will probably decrease, and those electorates are likely to become even safer for the MPs holding them.

41. I do also consider that the electorate race is not there to enable parties to better seek the party vote. Under MMP, electorates are largely irrelevant to the make-up of Parliament: they should be (and usually are) a purely local race aimed at determining whom local voters believe will best represent their local interests in Parliament, and it does not seem unreasonable to limit an electorate race to people who actually want to represent the electorate.

42. Lots of people stand in an electorate knowing that they won’t win, but putting one’s name forward for election when you don’t even want to win seems almost dishonest, and I’m not sure we should be writing our electoral laws to benefit those who wish to run in order not to be elected. So the idea of banning dual candidacy does have much to commend it; in particular, it is one way of decreasing the power of the party machines in the electoral system. If that is a desired outcome, however, open lists represent a better mechanism for achieving it.

43. Ultimately, I find the argument “if we want the best candidates available for our electorates, and the best candidates available for our party lists, those same people need to be on both bits of paper,” compelling, and that this is one matter I now consider should be left with voters at each election.

44. If voter concern over dual candidates (and zombie MPs) rises, parties would be foolish to ignore voters’ wishes, and those who do provide high list spots to protect incumbent electorate MPs are likely to suffer at the polls.

List MPs Contesting By-elections

45. In a number of respects, the question of whether list MPs should be permitted to run in by-elections is a subset of the question of whether dual candidacy should be permitted. I consider that if dual candidacy is permitted, then list MPs should be permitted to contest by-elections. Obviously, if dual candidacy is banned, list MPs should be prohibited from contesting by-elections.

46. The recent Mana by-election is instructive. The National candidate in the by-election had contested the electorate in 2008 and was intending to contest it again in 2011. The voters of Mana had a right to expect that they would be presented the best available candidates to choose between from each of the parties.

47. Given that we permit (even encourage) dual candidacy, it would have been unfair to have expected the people of Mana to try to get to know a new, second-best, National candidate for the brief period surrounding the by-election, before being presented with the real National candidate a few months later.

48. The controversy that there has been over list MPs running in by-elections has primarily related to the expected shuffling of list seats in the event that a list candidate were to win. Thus far, the political marketplace has resolved this issue, and parties likely to win by-elections have not nominated list MPs, and by-election voters have not elected list MPs. Voters are smart enough to realise the consequences of their votes – particularly when the media and their opponents can point these out – and this may be sufficient to meet the concerns some have.

49. That said, it seems likely that a list MP will win a by-election sooner or later, and if this shuffling of list seats is considered problematic, and the views of voters at that by-election are considered an insufficient check, there are two mechanisms to prevent it: the first is to require a list MP who wishes to contest a by-election to resign their seat before being nominated for the by-election; the second is to amend the Electoral Act so that if someone was an electorate MP at the time of their nomination, their status changes from list MP to electorate MP without their being replaced as list MP (the size of Parliament would reduce by one).

50. I consider that if there is public concern about list MPs running in by-elections, the second of these two options is the superior. The former does not resolve that issue, it just brings the list replacement forward to before the election, rather than after it. The latter allows parties to submit their best candidates for the by-election, (who may have contested the electorate previously, and be intending to contest it subsequently), without risking that person being out of Parliament for the remainder of the term, and also provides voters with a true choice between the best candidates, while preventing what many appear to consider is a ‘rort’.

51. However, if it is proposed to allow the current rules to continue, I submit that the rules around it should be made explicit in the Electoral Act. There is currently no requirement for such an MP to resign to allow a further list MP in, and were they to choose not to (perhaps out of fear of a voter backlash) it is not clear what would happen in the event their seat subsequently became vacant (would they be replaced only as an electorate MP, or as both an electorate MP and a list MP?). If this is to remain, the Electoral Act should spell out that when a list MP wins a by-election, they become an electorate MP and their list position filled by the next available person.

52. There is however one other factor that the Commission should consider. Campaigning for election while a member of Parliament provides a substantial advantage over that person’s opponents. It is almost certainly outside the Commission's brief to make recommendations on Parliamentary funding arrangements, however, it can and should recognise that the current rules permit spending in a way that is to the substantial advantage of list MPs contesting by-elections. If there are other concerns raised, then this may be enough to tip the balance in favour of change.

53. Finally, I would note that any recommendation should address not only list MPs, but also electorate MPs, who are also currently permitted to run in by-elections.

Open Lists

54. One of the unwelcome (albeit predictable) consequences of the introduction of MMP was an increase in the power of party bureaucracy and party leadership, which is primarily exercised through control over the party list.

55. There appear to be four basic options for change:

• Open lists, in which voters collectively have total influence over the order in which candidates are taken from lists;

• Semi-open lists, in which voters only affect a list order if a minimum number or proportion of votes are received by a given list candidate;

• Increasing the power of party members, rather than voters, by beefing up of requirements for internal party democracy, as already contained in section 71 of the Electoral Act;

• Abandoning lists entirely, and moving to a system where, for example, the ‘best losers’ in electorate races fill the available party slots.

56. I have previously viewed open lists as nice in theory, but unlikely to work in practice, given the logistical problems involved in having a voting paper with 600 names on it. A look at methods of voting in countries with open lists suggested that my initial scepticism was misplaced: a move to open lists would not require that each list candidate’s name appear on the ballot, and could be attained easily, with little added voter confusion.

57. If we are to move to open lists, a box could simply be placed under the party vote portion of the voting paper, into which voters (if they wish) would write a number, which would correspond to the number of a candidate on the list for which they voted (which could be attached to the inside of the booth). The list would then be re-ordered with the candidates for each party with the most votes moving to the top of their parties’ lists. Alternatives involving ranking the candidates, or allowing voters to strike out candidates, would provide a greater level of voter control, but would also substantially increase the complexity of the voting experience.

58. Such a mechanism would address many of the concerns that arise of the election of list MPs, including diminishing the incentive for members of Parliament to toe the party line against their better judgment, or the views of the public. If these are major concerns, this form of open list system would represent an improvement.

59. The major problem with an open list system (particularly one based on a single national list) is that an open list is also an unknown list. With open lists, voters cannot be sure exactly who they are voting for when casting their party vote:

• Voters casting a vote for a party on the basis of a highly-placed candidate they particularly admire may find that other candidates leap-frog that person;

• A voter who dislikes a candidate particularly low on a party list, and whom they therefore don’t expect to be elected, may find that the marginal effect of their vote is to cause that person to be elected;

• A voter who votes for a party list with a high number of, for example, female candidates, may find that the vote has actually elected a number of men from the list, and almost no women.

60. Closed lists, on the other hand, provide certainty to voters, so that voters can be fully informed about the likely effects of their vote, and can take these into account in the voting booth.

61. Again, the political market may be viewed as a solution to this concern of party hierarchies holding too much power. Voters who disagree with strong party control can vote for parties that operate more open processes. Mandating open lists may also have the counterintuitive effect of decreasing voter choice. To require open lists would negatively impact on the choice to parties to adopt internal policies around, for example, geographic diversity or gender-balance. The Green Party, for example, consider their list balance a selling point, and many may vote for them on that basis. Whilst I do not support mandatory quotas, if a party wishes to impose them on itself, and then campaign on that basis, this seems not only proper, but democratic.

62. For these reasons, I consider that open lists would, on the whole, represent a retrograde step. There are substantial benefits in terms of public acceptance of the legitimacy of the election of list MPs, but the negative consequences would likely outweigh these.

63. A move to semi-open lists, would, I consider, be worse than a move to open lists; it would involve many of the detriments of open list systems, only without the resulting benefits in terms of MP autonomy.

64. Similarly, I oppose a move to a “best loser” system. Not only does it remove information from the voter, it pollutes local electorate races – people may be encouraged to vote for someone they don't want as their local representative to give that person a better chance of getting in on the list. Voters shouldn't have to make that choice: the electorate vote should be about voting for the person you want to represent your electorate. More concerning is that it is open to a great deal of manipulation: parties would be encouraged to place candidates in electorates with which they have little connection in order to increase their chances of being elected. And it would also favour candidates in races where there are fewer opponents.

65. Because of the detriments of an open voting system, I consider that a proposal to increase the role of individual members of political parties has substantial merit as a means to somewhat diminish the unwelcome increase in the power of party hierarchies. It removes the concern of centralised control of party list-ranking, and moves some of the accountability of members of Parliament from party leadership to voters (albeit voters who are members of political parties).

66. To accommodate the desires of individual parties, the changes need not be especially prescriptive. If some flexibility was desired, it could be allowed that individual parties could impose, for example, a requirement for membership for a certain period before a member was eligible to vote, or allow the result of party-member ranking to be filtered through a transparent process to achieve some desired outcome (e.g. geographic diversity or a high level of gender equality).

67. Again, it can be argued that this power is already in the hands of party members. If party members wish to exercise greater control over list ranking, internal amendments can be proposed to party constitutions and list ranking procedures; if enough party members agree, the question can be forced and if necessary, internal party elections can be fought over the issue: increased power over list ranking is party members’ to take. However, this is one instance where I am not sure that the political marketplace is sufficient. The benefits in terms of increased party accountability, and a decreased reliance on the patronage of party leadership, that should flow from moving list ranking powers away from party structures to broader party membership accrue to all, including those who vote for other parties. It was partly for this reason that the Royal Commission recommended the rule that became s 71 of the Electoral Act in the first place: we all have an interest in all the political parties contesting our elections operating in a democratic manner, and additional party democracy is something that we may legitimately require.

Overhang

68. I am not particularly concerned about overhang. That there are extra one or two MPs, who make Parliament slightly more proportional, doesn't bother me: the possibility of either overhang, or some disproportionality caused by a party winning electorates in excess of their party vote, is an unavoidable component of an MMP voting system.

69. While overhang is generally attributed to split voting, it is possible even in the total absence of split voting. A cursory analysis of New Zealand's recent experience also suggests that our having electorates in which numbers of voters differ quite markedly is also a substantial cause. The possibility of overhang could be reduced by equalising voter population between electorates, and having boundaries drawn by reference to voting age population, and not overall population. I would oppose such a measure. Members of Parliament represent all New Zealanders, not just those of voting age, and the approach we currently have is one mechanism to partly recognise the importance of young New Zealanders.

70. I anticipate that the Commission will be asked by a number of submitters to consider the balance of electorate and list seats, with a view to increasing the number of electorate seats. In considering that question, the Commission should be mindful of the effect that that might have on the potential for overhang. While a small level of overhang is acceptable, if it were to increase, voter acceptance of the results of elections would likely decrease markedly; this should be guarded against.

71. Whilst I don’t have a particular concern with overhang, I am also not particularly wedded to it. If otherwise overhang-causing MPs were treated the same as independent MPs currently are (reducing the number of quotients allocated), this would not be especially concerning, unless the disproportionality was large.

72. Given the importance that New Zealanders place on electorates, and our seeming distaste for an increase in the number of MPs, I do not see a need for balance seats, however I would not be opposed to allowing that a party which received more than 50% of the vote should be given balance seats if necessary to ensure it controls more than 50% of the Parliament (whether overhang itself remains, or not). The possibility that overhang (or rounding errors) may mean that a clear majority of voters might have their will thwarted is something that should be avoided: a small number of balance seats in this unlikely scenario seems like an appropriate compromise.

The Effect of Demographic Change on the Ratio of List to Electorate Seats

73. Should the faster growth of North Island and Maori-enrolled population continue over time, it is inevitable that at some point, the number of list seats will fall to unsustainably low level, in which overhang is ever-present and increasing, and proportionality is difficult to maintain.

74. It seems unlikely that this will happen for a very long time, however, I would support incorporating a requirement into the Electoral Act setting a minimum proportion of list MPs. I anticipate that somewhere around one-third of the seats should be guaranteed to be list seats, but a political scientist or two will be able to advise on the level at which we can be confident that proportionality can be maintained. In order to be sure that a different ratio of list seats to electorate seats is unlikely to greatly effect an election outcome, the Commission should submit any proposals to the “2002 test”: scale the results of the 2002 election to the different ratios of list and electorate seats, and if no overhang results, the change is likely to be unproblematic.

75. I would note that as the number of electorates increases, the number of electorate seats held by the major parties will also increase – numerically, and as a proportion of seats held. Over time, this risks decreasing the ability of the major parties to elect specialist MPs of the type we may expect to come through the list, as a greater and greater component of the major parties come from electorate victories.

Other Matters

A Referendum on any Changes

76. I submit that the Electoral Commission should give serious consideration to recommending that its proposals for change should be adopted by Parliament and put to the public in a referendum.

77. Whether this is necessary is likely to resolve around exactly how extensive the recommendations for change are, but given the substantial scope of political self-interest from our current members of Parliament in their response to the report, and given the importance of these matters to our democracy, public approval or rejection of any changes may increase public confidence in our political system.

The Sainte-Laguë Apportionment System

78. I consider that the Sainte-Laguë apportionment system, which produces the most proportional outcome, is the best method of dividing up seats in the House of Representative.

79. I recognise that other systems, such as the d’Hondt system, will guarantee (subject to overhang) a parliamentary majority to a party which receives over half the votes, which Sainte-Laguë does not do in all circumstances. If this prospect is a concern, the solution is to provide for a small number of balancing seats in the unlikely event this occurs, and not to lessen the proportionality of every election we hold.

80. As I note above, if the Commission recommends removing the artificial threshold entirely, it should consider tying that proposal to a modified form of the Sainte-Laguë apportionment system.

The Number of Electorates

81. I consider that the number of electorates we have at present is sufficient. If there are concerns around the size of some electorates, a small allowance could be made by increasing the electorate tolerance, perhaps to the 10% that the Royal Commission recommended (abolishing the one-seat rule will remove some small residual concerns about adopting this course).

82. I would not necessarily oppose a small increase in the number of electorates if we could be confident that the proportionality of the House could be maintained, however, I would note that this would increase the likelihood of overhang. Again, I submit that the “2002 test” should be applied, to ensure that we can remain confident that we have a sufficient number of list MPs for proportionality to be maintained.

The Consequence of an Election Petition on the Proportionality of Parliament

83. I submit that it would be desirable to allow a party, following an election petition that results in a change to the make-up the House, to then petition the Court of Appeal to redo the allocation of list seats.

84. Although we have, I think properly, decided that certainty of the result is important, this is one instance where the democratic imperative of the overall election result should hold sway, even if it means a short period of uncertainty, or results in a member of Parliament losing their seat after being sworn in.

85. The inability to redo the allocation of list seat is most concerning where the one-seat threshold may come into play (either because a party has been improperly denied, or improperly allowed, a number of list seats), but it may be necessary to avoid the possible results such as a high-ranking list candidate being left out of Parliament because of a change in their status as an electorate MP.

86. The drafting error that declares that a vacancy arises (with all that entails, for example a by-election) following a successful election petition, could also usefully be corrected.

Proportionality between General Elections

87. I support the retention of the current system whereby proportionality is not recalibrated after a by-election. A member of Parliament should not have their seat vacated because someone in their party has won a by-election in a seat previously held by someone else.

Entrenching MMP

88. Given the importance of the voting system, I submit that the MMP voting system, and a number of the details involved in it, for example, the size of the House, the threshold, the apportionment system, should be entrenched.

Replacement List MPs

89. Recent news stories have alerted me to one oddity that remains in the replacement of lists MPs. A potential replacement list MP remains eligible to take the place of a retiring member of Parliament even if, during the period they are waiting, something occurs that had they been a member of Parliament would have resulted in them losing office (for example, a conviction for a corrupt practice, or other serious criminal conviction). I believe this oversight should be remedied, although not all the methods in which a vacancy arises should be included (for example, it should be permissible for a potential replacement list MP to be a public servant in the interim).

90. Another issue in relation to replacement list MPs has arisen in each of the last two terms of Parliament, where there was some public disquiet over the re-jigging of party lists after the election, with various replacements declining to take up positions in order to get desired people into Parliament.

91. I consider that the political marketplace is an ideal solution to these concerns. If the circumstances of a replacement are such to annoy members of the public, that is a matter they can and should take into account when considering their vote at subsequent elections. No law change is necessary.

92. I am aware of proposals that party leadership or party boards should be permitted to simply choose from those waiting on the list to fill a vacant slot. While there are some advantages to such a system (a party could replace an MP with a particular skill-set, or representing a particular group in society, with someone similar), I would oppose any change in this direction. Not only would it give additional power to party leaders, but more importantly the list is the list for which people voted: outside forces should not be permitted to change it after people have voted.

93. I would, however, support one minor change. Once a person has declined to take up a list spot, they should not be asked again if there is to be a subsequent replacement, which is what the law currently seems to require.

Death of Incapacity of a Constituency Candidate at a General Election

94. Under MMP, electorate seats are significantly less important than they are under other voting systems. Because of this, I do not consider that the rules we have to deal with the death or incapacity of candidates (which we carried over from the Electoral Act 1956) should remain.

95. The rules are particularly problematic while we have the one-seat threshold, but even if that goes, the rationale for cancelling a constituency election following the death or incapacity of a candidate is weak. There is no reason why the death of an independent candidate with little chance of winning should put the country to the cost of a by-election, and the disproportionality that results from conducting an apportionment while ignoring an electorate that may be highly likely to be won by a candidate from a particular party.

96. I propose that the Commission recommend that in the event a candidate dies or is incapacitated after the close of nominations, the election should proceed, with a by-election only called if the dead or incapacitated candidate actually wins.

Conclusion

97. Thank you again for the opportunity to file this submission, and for the opportunity to present it in person.

98. I look forward to reviewing the Commission’s draft recommendations and making further submissions on them later in the year. I also look forward to perusing other’s submissions, and possibly filing written material in response to some of the common proposals that may arise and which I have not addressed.