Legal Beagle by Graeme Edgeler

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Pandemic Preparedness and the New Zealand general election

New Zealand is planning to hold a general election on Saturday 19 September 2020. With the COVID-19 pandemic, I’ve had several queries about how New Zealand’s electoral laws would cope with this event. There’s obviously a long way to go until the election, but because I was asked, and because it’s useful to have these things written down accessibly to point to later, I've prepared a brief Q&A.

Although not related to COVID-19, the Electoral Act was updated last week, adding things like election day enrolment, but also updating the laws around interruptions of election day. Spurred on, I think, by the Christchurch earthquakes, the law still mostly covers short-term or localised disruptions. We’re not in lock down yet, and may never be, but what does the law say about disrupted elections?

Can the election be delayed?

Yes. Although the Prime Minister has announced the date of the election, the legal formalities have not been completed, and will not be for some time. It is open to the government to announce a different date for the election. It could do this right up until the 52nd Parliament expires. It is possible (and probably advisable) that this would occur after seeking input from the opposition, but this is not required.

When does Parliament expire? And what’s the last date an election could be held?

Unless it is sooner dissolved, Parliament will expire on 12 October 2020. This is because the term of the New Zealand Parliament is three years. This three years starts from the date set for the “return of the writ” of the preceding election (ie the date when the writ – the formal document signed by the Governor-General ordering the Electoral Commission to hold an election – directs that itself be returned to the Clerk of the House of Representatives declaring who was elected). For the last election, the date set for the return of the writ was 12 October 2017, so three years later is October 2020. If we waited until this last day, the usual process would start then – the writ ordering the election must be signed within seven days (so 19 October 2020) and (under that law change from last week) it must be returned within 60 days (so 18 December at the latest). Working backward from this date, this gives a realistic last day for the election of 5 December 2020, allowing time for the count to take place after overseas votes are allowed in), but this could technically be pushed to 12 December 2020 if the regulations were changed (that’s probably unlikely).

That’s under normal circumstances, are there powers to delay the vote beyond that time if there’s an emergency?

Yes, there are rules (also updated last week) about what to do if there is an “unforeseen or unavoidable disruption” to an election. They’re mostly designed to deal with short-term, or localised disruptions (think earthquake or particularly bad weather), and only once an election has been called, but they could be used during an epidemic. The power enables the Chief Electoral Officer to adjourn voting for up to three days, and then subsequently for recurring 7 day periods. During an adjournment, the Electoral Commission could make arrangement for alternative voting processes, including, for example, extending the electronic voting process overseas voters can use to New Zealanders.

With the uncertain end point, and the fact that while this is going on, there isn’t a Parliament, it is not an ideal process to use when the disruption is known, and seems very much to be a last resort, for a very short period.

Can the Government delay the election beyond this year?

The Government couldn’t. Not by itself. But if it was thought necessary, Parliament could delay the election. It has done this before: despite the standard three-year term, the 19th Parliament (elected in 1914) lasted almost 5 years, after Parliament passed the Parliamentary Elections Postponement Act 1916 because of the First World War. Parliament passed a law extending the term of Parliament to four years in 1934 (extending the term of the then current Parliament as well), possibly as part of the response to the Depression. This was later reversed, but the election was also delayed twice during the Second World War, with a Prolongation of Parliament Act passed in each of 1941 and 1942.

Under our current system, a law delaying the 2020 election beyond early December would require legislation, which would have to be supported by at least 75% of the House. In the current Parliament, this means both National and Labour would have to agree.

We’re not at that stage yet, but what if the need to delay the election didn’t arise until after Parliament has stopped sitting?

If Parliament had adjourned, but not been formally dissolved, it could be recalled to act. If the house had been dissolved, or expired, then one way or another there would be an election. It might be briefly delayed using the Chief Electoral Officer’s adjournment powers, but it would have to happen at some point, in relatively short order.

If the election were so deficient, for example, in turnout, with large groups of voters unable to vote because of an unforeseen or unavoidable disruption, it would still result in the election of MPs, but it is possible that the new Parliament might see itself as a sort of caretaker Parliament. The caretaker convention is about executive government in times where the Government doesn’t have the confidence of Parliament (for example, in the period after the vote, but before the result is counted), but something analogous might apply to a Parliament that couldn’t be sure it really had the support of voters – it could ensure continuity, make necessary changes and approve spending (preferably by consensus), and hold the fort while arrangements were made for a new election. This is a long way off however.

Are there other options beyond delaying the election?

Depending on the cirsumstances, Parliament could recognise the issues inherent in holding an election during, or soon after an epidemic, and change the laws around voting - perhaps allowing people within New Zealand to cast special votes electronically in the same way that voter overseas can. Telephone voting, made available to members of the Deaf community would be another option, as would going to a postal vote. Most of these changes would require amendments to the Electoral Act, some might require a supermajority, but some of the smaller ones might be able to be done through the Electoral Regulations. Thankfully, we have time to consider our options.

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