Legal Beagle by Graeme Edgeler

13

Semi-Random election law thoughts

In advance of the tri-ennial Parliamentary review of the election, the Electoral Commission has released its Report of the 2011 General Election and Referendum.

There's some interesting reading in it: for electoral law nerd like me, but also of more general interest. The Commission notes, for example, some of the matters it referred to the Police:

  • two Broadcasting Allocation matters (plus the PM's hour)
  • 63 cases of dual voting/personation
  • nine candidates for failure to file election expense/donation returns (which the Commission says should be upgraded to a corrupt practice)
  • 12 election advertising matters
  • 11 election day concerns, including: one delivery of a flyer; five social media; one election day Broadcast; one attempted assault of an election official and damage to a polling place; one assault of an election official during advance voting; one attempted theft of a ballot box; and one display of a billboard.

The Commission notes:

Some electoral matters referred to Police are straightforward, such as dual votes or failure to file returns, and are dealt with in a timely manner. Some are more difficult and complex and the Commission is concerned about the priority the Police seem able to accord these referrals.

The Commission also makes a number of recommendations on a range of other matters, some technical, but many not. For example, it has proposed abolishing the five-yearly Maori option, and allowing those of Maori descent to change electoral roll once each Parliamentary term.

Public submissions on the Parliamentary review closed on Friday, and for those interested, my submission is copied below (although, if anything, you'd be better reading the Electoral Commission's report!). Don't worry if there's something of particular import you'd like to speak out about. The review is just the first step. The Justice and Electoral Committee will gives its view, and the Government will respond to it. Any law changes it might agree to as a result of this will go through the ordinary legislative process with further Select Committee consideration.

Submissions to the Electoral Commission's Review of MMP can still be made. The Commission is welcoming submission on that over here.

***************

Introduction

My name is Graeme Edgeler, and I am a Wellington lawyer with a particular interest in electoral law. I can be contacted at Graeme.Edgeler@gmail.com.

I thank the Committee for the opportunity to make a submission on the Review of 2011 General Election, and look forward to presenting my submission in person.

I am grateful for the Report of the Electoral Commission on the 2011 General Election and Referendum. It raises a number of issues I had intended to raise, and addresses other matters on which I have some comments.

Timing of the Maori Option

The Electoral Commission has recommended that the post census Maori option be removed, and that people of Maori descent should be permitted to change between the Maori Roll and General Roll (or vice versa) once per term.

I do not support this proposal. Such a move would create an unequal electoral system where some voters have a greater opportunity of influencing elections than others.

Many people opposed to the continuation of the Maori seats do so on the basis that the seats provide a discriminatory privilege to a class of people based on, effectively, a racial characteristic. It is a useful argument to counter this view that the Maori seats are formed on the same basis as general seats, and provide little substantively additional power. Allowing someone to switch between the two rolls at any stage during the electoral cycle would permit someone to change electorates with the intention of influencing the result: for example, to vote in a by-election, or because the polls suggest that the general or Maori electorate they may be in will have greater influence over the result.

A major rationale for the continuing retention of the Maori seats is that people of Maori descent form a distinct group worthy of representation in the New Zealand Parliament, and that those whose Maori identity manifests in a particular way should be able to exercise this collectively with others of Maori descent. This proposal undermines this argument. If it is adopted, a choice to be represented through the Maori roll will be much more able to be exercised for transient tactical reasons, and not as a choice expressing Maori identity.

I support the retention of a Maori option alongside the redrawing of the boundaries. If it is felt that people of Maori descent should be provided one option per term to change between the Maori and General Rolls, that process should only be adopted if the number of electorates are recalculated and the boundaries are also redrawn each term after that option is held.

The nomination deposit

I believe that Elections should be fought on a level playing field.  The regime by which candidates and parties receive their nomination fees back if they receive a certain level of support is unfair. It is effectively a tax on small parties, which must spend many thousands of dollars to contest the election, which the major parties ultimately get to do for free.

I submit that the nomination fee should be non-refundable. If parties do not wish to face the cost of nominating candidates in this way, an alternative means should be provided of showing local support: perhaps allowing that a candidate who’s nomination has been seconded by 50 or 100 voters in the electorate to pay no fee. Not only would this level the playing field between all candidates and parties, it would provide a positive encouragement to candidates and parties to engage with the community at a grassroots level.

Continuous disclosure of party donations

The disclosure threshold for party donations is now $15000. Parties are requires to constantly track donations made at levels lower than this to ensure that they can properly declare accumulated donations at this level, or at the higher $30,000 level at which disclosure must be made within 10 working days.

I submit that all donations over the disclosure level should be disclosed within the 10 working day timeframe. The imposition this would place on parties is not very great. There are not a great many donations between $15000 and $30000, and parties are already keeping track of them anyway. There seems to be very little – if any – reason why it is so important that the public is informed about the identity of someone who has donated $25000 to a party, but is so unimportant that they should only be told perhaps six months after the donation was made, and well after the election.

Donations protected from disclosure

The regime by which donations may be made through the Electoral Commission, while serving a legitimate purpose, should be abolished. It suffers from the same concern that is currently alleged John Banks’ 2010 mayoral campaign may have. A donor can approach a political party, ask to make a donation of $40,000 without disclosing it, and be told that the donor of donation that high must always be disclosed, unless the donation is made through the Electoral Commission. When a $40,000 donation arrives the following week through the Electoral Commission, the party gets to declare it as anonymous, but is it really? And even if it is, the perception remains that it might not be, which is itself damaging to the political system.

Enforcement

I echo the concern that the Commission raises in respect of the priority which the Police seem to accord to some investigations of alleged breaches of electoral law, whilst the investigation of simple breaches appears to work well, they seem to take an inordinate amount of time with others. It is time for someone else to be given responsibility for prosecuting electoral offences.

It would also be appropriate for political parties to be able to be charged with electoral law offences. While there will be occasions where an individual such as a party secretary is the appropriate defendant, in some cases it will be more appropriate to charge the party itself, without having to sheet home personal responsibility to a single individual.

Minor Offences

Related to the issue of enforcement is the issue of minor offending against various election rules. Much of the offending considered by the Electoral Commission is very small, and involves no attempt to obtain advantage or deceive voters. An expense return filed one day late, or an electorate newsletter that carries the name and photo of an MP but not a full promoter statement will not usually be that bad. While it is appropriate that the minimum rules are upheld, in many instances a criminal charge, or even a police investigation, will seem overkill. Decisions not to prosecute can however seem like favouritism, or having political motivation. This can undermine public confidence in the administration of elections.

I submit that consideration should be given to making some of the offences in the Electoral Act infringement offences, rather than summary offences. In some instances, it will be appropriate to split a current offence in two: an infringement offence where there is a simple breach, and a criminal offence where there is an intention to mislead or gain a corrupt advantage. For example, it might be appropriate for the following to be infringement offences:

  • the simple failure to include a correct promoter statement on an election advertisement;
  • the late filing of a donation or expense return.

While similar actions could be considered criminal if:

  • a promoter statement was either false or left off completely, with the intention of deceiving voters;
  • the late filing of a donation return was deliberately done with a corrupt motive (for example, avoiding disclosure of a large donation until after the election).

As with other infringement offences (like speeding fines or parking tickets), a person aggrieved with being ticketed could challenge the ticket in court.

The Broadcasting Act

I have submitted in support of changes being made to the Broadcasting Act to ensure a more level playing field, on a number of occasions in the past. The current system in which the level of public broadcast funding a party receives is also its spending cap is indefensible, with nothing to commend it. Banning your political opponents from advertising is about as low as things can get in a democracy, and with the limits the funding allocation imposes on minor parties (especially those outside Parliament), we’re perilously close to this.

It seems this has fallen on mostly deaf ears. If this continues, then at the very least this Committee should recommend that sub-paragraph (ii) in paragraph (c) of the definition of election expenses in s 206 of the Electoral Act should be deleted. Even if the law must allow the major parties a massive advantage in broadcast advertising, overall spending limits on each political party should be identical.

A Referendum Act

The process by which the referendum was conducted, including the disclosure of advertising and spending limits, etc. appears to have been appropriate.

I submit that the underlying structure of the Electoral Referendum Act should be adapted into a permanent law, under which all future national referendums can be conducted. If Parliament is considering holding future referendums (whether binding or non-binding) it should not have to pass a law setting out the mechanics of voting (the writ, voting, counting, advertising, registration, disclosure etc.) each time, it should simply be able to pass legislation with a contingent commencement that applies the mechanisms of a Referendums Act.

Other Electoral Commission Proposals

Party Registration

The Commission has proposed that parties should be required to have at least 500 financial members who are enrolled to vote, instead of the current requirement for there to be 500 financial members who are eligible to be enrolled to vote. It asserts that it is unaware of the policy rationale behind the current law.

The policy rationale behind allowing a party to register if it has 500 members who are eligible is that it is something that is within the knowledge we can expect of a party secretary. Each year, the Party Secretary is required to make a declaration stating that the party is still eligible to be registered. A party secretary is in a position of knowing whether the party still has 500 members who are eligible to enrol (they will know names and ages, and addresses etc.). It places a far greater obligation on a party secretary to know that no member whom they were counting has had their enrolment lapse.

The Commission has also proposed that an application fee for applications to register a party should be imposed. If there are additional costs imposed on the Commission in its processing of party registration, this may be appropriate, but the rationale offered by the Commission is misguided. Even if having a minimal fee may help “bring home to potential applicants that it costs money to meet [the legal requirements of being a registered party]” this is not a basis on which the government should ever charge a fee. A fee is appropriately charged by the government for a service if it incurs a cost that it considers is improper for the taxpayer to bear. There can be no other proper basis.

Logo Registration

I believe that candidates for unregistered parties should continue to be able to have a logo next to their name on the ballot. The Commission’s rationale that removing the logos of unregistered parties would simplify the information provided to voters on the voting paper is unconvincing. If the ballot is considered too “busy” then removing the logos of all parties, or prohibiting all candidates from having logos would better solve it.

Particularly if the review of MMP results in the removal of the one-seat rule, the incentive for some minor parties to continue to contest the party vote may diminish. There is no reason that the law should preclude a party forming with the intention of only contesting the electorate vote, and then operating in electorate races on the same basis as other parties.

I recognise the Commission’s concern about the number of spent logos that are currently on the register. The solution is not to ban all logos of unregistered parties, but to allow the Commission to remove logos if they go unused: if a general election passes and an unregistered party that has a registered logo has not nominated any candidates, the Commission should be able to remove it logo from the register.

I recognise that there is a cost involved to the Commission of registering and de-registering logos (Gazetting, and publicising the logo, for example). A fee for registering or changing a logo may be appropriate.

I would finally add that the law should permit a party that is seeking registration as a party to concurrently seek to have a logo registered. The current law, which effectively requires a second application once the first one is accepted is unnecessarily cumbersome.

Judicial Recounts

The (small) possibility that an election petition may undermine an election result is something that I have commented on in the past. I welcome the Commission’s proposal that the law be changed to ensure that this cannot happen.

I proposed to the Electoral Commission’s review of MMP that, in the event that an election petition at a general election successfully overturned the result of a seat, that the Court of Appeal should be able to reallocate the list seats, in order to ensure that the result of a general election are reflected in the resulting Parliament. I arrived at the proposal to have the matter referred to the Court of Appeal arose because of that Court’s powers in respect of election petitions respecting the allocation of list seats.

I consider the Commission’s suggestion of the High Court referring the matter back to the Commission for a reallocation to be superior. A party will still have the option of pursuing an election petition relating to that allocation if necessary, but there is no reason to require it.

The Commission’s proposal is not expressly limited only to general elections, and appears on its face to allow that the Electoral Commission could be asked to re-do a list allocation after a by-election (which, if the one-seat rule is retained, could be interesting to say the least). I do not anticipate that the Commission was actually proposing this, however the law should be made clear that a reallocation would only be permissible after an election petition arising at a general election.

Failure to file an election expense or donation return

When I first read the Commission’s recommendation, I was surprised, as making the non-compliance with these requirements an imprisonable offence seems excessive. I then considered the rationale that it offered, which is compelling. The failure to file an election expense or donation return deprives voters of information in exactly the same way as the filing of a false return does, and undermines the purpose of election finance obligations in exactly the same manner.

It would be appropriate, however, to distinguish between a total failure to comply with the obligations, and merely delayed compliance. The current rules criminalise a failure to file a return on time, but do not distinguish between a late return, and a non-existent return. A candidate or party secretary who files a return a few days late without a reasonable excuse should be recognised as breaking the law, but this should not be considered a corrupt practice. Indeed, as I note above, it may be appropriate to recognise a late filing which has had no real effect on transparency as an infringement offence, punishable by a spot fine (like speeding, rather than dangerous driving).

Election advertising

I support amendments to the law to bring the prohibitions and exemptions in the Electoral Act and Broadcasting Act into line. If some publication is exempt from regulation as an election advertisement, it should also be exempt from regulation as an election programme.

Election day “advertising”

I have always liked that scrutineers are identifiable by their party, as I think it adds to the obligation on them not to ‘misbehave’ in a polling place. I know that if a scrutineer was to ever exercise their rights under s 166 of the Electoral Act in respect of my vote, I’d want to know what party they represented in order to ensure that party never got my vote ever again. I also think that it is important that voters know who the people in a polling booth are, so that if they need assistance, they won’t unknowingly approach a party member. A scrutineer badge goes some way to this, but many voters will not know what a scrutineer is. A rosette or lapel badge is more easily recognisable.

I recognise, however, that some voters may not like there being any party paraphernalia in a voting booth, or may be intimidated by it, and am content to rely upon the Commission’s experience in recommending a balance.

I would note that if the Committee is considering banning the display of balloons on election day, it should consider whether such a ban would be a reasonable and proportional limit on free speech.

Conduct of Referendums Generally/Electronic Voting/Turnout

The Commission has proposed that future referendums should be conducted by postal ballot. It has also recommended further consideration of Electronic voting.

I oppose such measures. The shared experience of voting is an important part of fostering a democratic society. The sense of democracy as a community undertaking would be lost if we were able to stagger the election over two weeks. I very much doubt there would be more than a minimal effect on voter turnout, and I wouldn’t be surprised if the decline in civil society I think it would precipitate actually lead to decreased interest from the politically disinclined.

We vote because we think we should. Others vote because they see us vote and think they should. We vote because when we were younger our parents took us with them when they were voting and it was solemn and seemed important. We vote because there’s one day every three years when voting is what you do – what everyone does. And even though this election saw a reduction in turnout, making the day less special is not going to turn this around.

Conclusion

Thank you again for the opportunity to file this submission, and for the opportunity to present it in person. I look forward to reading the Committee’s report, and the Government’s response to it.

13 responses to this post

Post your response…

Please sign in using your Public Address credentials…

Login

You may also create an account or retrieve your password.