Legal Beagle by Graeme Edgeler

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Up to 11

Although this year’s voting system referendum is officially non-binding, one aspect of it is actually self-executing. Should the “keep MMP” option in the first question get at least half the votes, the Electoral Commission will conduct a review of the details of MMP, with a view to making recommendations on how it could be improved. I anticipate public meetings, open submissions, and maybe even public hearings like a mini Royal Commission, and am nerdishly looking forward to the prospect.

I suspect I think about these things more frequently than almost anyone else, so I’ve pretty firm views on a lot of the machinery of MMP. It was thus quite a surprise when I found my opinion on one aspect had changed. It’s not that I am set in my ways; when forming an opinion, I like to think I deliberate fully. I form tentative initial views knowing that more information may come along. When circumstances change, the calculations can too. Not this time. Someone just presented an argument that was there all along in a slightly different way, and I couldn’t answer it. Quite liberating, really.

Though it has long been unpopular, I have been a strong supporter of the single seat exemption, which allows a party that wins an one electorate seat to keep the seats their party votes would earn them, but for the 5% threshold. The single seat exemption was a means to a more proportional electoral end, when confronted with a 5% threshold I’ve long-considered too high.

People would argue that “it’s unfair that ACT gets five seats in Parliament, while New Zealand First got twice as many votes and didn’t get any.” I had two responses. First, New Zealand First didn’t get twice the party votes of ACT, New Zealand First got 95,356 party votes, and ACT got 85,496 party votes, which is pretty close.* Second, the ACT Party isn’t represented in Parliament, ACT voters are, and it is not unfair that the 85,000 ACT voters are represented in Parliament, the only thing that’s unfair is that the 95,000 New Zealand First voters aren’t also represented.

* I’ve made this argument so often, these numbers are actually from memory. But I still check every time just to make sure. Hint hint, New Zealand Listener.

When people proposed getting rid of the single seat exemption to make the system fairer, I’d point out that had the 2008 election been run without the single seat exemption we wouldn’t have seen a fairer result, it’s just that instead of the result being unfair to New Zealand First voters, the result would have been unfair to both New Zealand First voters and ACT voters. Kicking four ACT MPs out of Parliament wouldn’t have made things any fairer to the voters who supported New Zealand First.

I thought these were strong arguments. And I still do. But they’re no longer strong enough. The argument against my position was always put as I have described above, and I was pretty confident that my rebuttal defeated it. And not least because the other arguments for the backed it up.

One of the arguments for the 5% threshold is that it keeps extremist parties supported by a small minority of voters out of Parliament. The threshold is also said to stop our party system fracturing into too many small parties such that governmental stability is threatened, and that a party with just one or two MPs (which we’d get with no threshold) can’t be an effective voice in Parliament (e.g. it only gets to sit on one select committee, and gets too few oral questions and speaking slots etc.). These are sound arguments – you can argue over whether they are strong enough that people should be denied parliamentary representation, but the concerns are legitimate. But for a party that wins an electorate seat, these rationales fall away.

That party is going to be in Parliament anyway, so the 5% threshold can’t keep it out whether it’s extreme or not. It’s also already a small party in Parliament, and artificially limiting it to one MP makes it less effective, when voters might have given it enough votes for four or five. The arguments that are presented as being strong enough to deny a pretty large collection of voters their proportionate representation are much weaker if that party is going to be in parliament anyway. Plus, 5% is quite high, and the single seat exemption doesn’t give voters more representation than they’re entitled to, it just ensures they get the representation a proportional system should give them anyway.

And then someone put the argument in a different way, a way that seems so simple I should have thought of it in exactly that way myself. Because the bit I like about MMP is not that it is proportional, the bit I like about MMP is that every vote is worth as much as every other; and while those usually mean the same thing, the single seat exemption is one instance where they don’t.

The single seat exemption increases proportionality, but it does this capriciously, by giving the voters of an arbitrarily designed geographical constituency immense power. Like marginal electorates turned up to 11, the single seat exemption can allow the voters in one or two electorates to decide the election. ACT earned five seats because it got 85,000 votes, but it was the voters of Epsom who decided they could keep them; New Zealand First earned five seats because it got 95,000 votes, and the voters of Tauranga got to tell them they couldn’t. It is simply wrong that so small a group of voters get to wield so much power.

As much as I dislike the threshold (and certainly dislike that it is set so high), that the single seat exemption is a means around it is no longer a good enough rationale. I support the basic principle “one person, one vote, all votes of equal value”, and the single seat exemption laughs in its face. The threshold denies many voters their equal representation in Parliament, but giving other voters vastly more power isn’t a good fix.

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