MMP is over 30 years old, or Idiots to the right of me

The New Zealand Herald has published an opinion piece by Richard Prebble that asserts that “It is likely that National candidates in Nelson, Te Atatū and Mt Albert who narrowly lost after the special vote count won more valid votes. It is likely that Peeni Henare and Kelvin Davis really won Tamaki Mākaurau and Te Tai Tokerau.”

I have no idea how Prebble can make this claim with such certainty, given the scant evidence he proffers. He does state “I know two electors who voted using their old address.”, albeit he doesn’t advise us whether he has passed their names along to the Electoral Commission, the Police, or even a political party. He’d need to know many more than two such voters, as there isn’t a single electorate result within close to that margin. He doesn’t even say if his acquaintances voted in a close electorate.

Prebble’s piece is confused, seeming to make assumptions about MMP elections from his time operating under First Past the Post, and ignoring changes in law and practice that followed the introduction of MMP.

My guess is that he’s right about one thing. There are probably a bunch people who have enrolled to vote in a place where they live sometimes, that actually isn’t the place they live most of the time. But this is MMP, and it’s not clear how this would affect the overall result.

First of all, Prebble describes the rule as “Many people have more than one address. They do not have a choice. They must only enrol and vote where they mainly live.”

That was true for a time under first past the post, the Electoral Act 1956 initially provided that a voter who “has two or more usual places of abode he shall be deemed to reside in the place in which he spends the greatest part of his time.” But it isn’t true anymore, and wasn’t even true for the last FPP elections: the rule was changed in 1989 to provide that “A person resides at the place where that person chooses to make his or her home by reason of family or personal relations, or for other domestic or personal reasons.” Prebble was an MP at the time. He voted for the law change. This change was carried over into the current Electoral Act, which, incidentally, Prebble also voted for.

(Image via UK Parliament. Yes, I read Hansard for this. Don’t worry, you don’t have to.)

But even if Prebble’s theories about people deliberately (or inadvertently) voting in the wrong electorate are true, his conclusion that “It is possible that if only valid ballots were counted, National and Act together won the election” wouldn’t follow.

That’s first past the post thinking too. Under first past the post, if you were determined to have voted in the wrong electorate, your vote would be cancelled. But we replaced first past the post 30 years ago. The rule is now that if someone votes in the wrong electorate, but is otherwise entitled to vote, their electorate vote will be cancelled, but their party vote would still count. And it’s the party vote that decides the overall shape of Parliament.

And even if the law was changed so that the party vote was cancelled as well, the “the shift of a handful of votes” could not actually change the election in a way which meant National and ACT could govern alone. For National to have held on to two seats at the expense of Labour and the Greens, you’d have to cancel nearly 33,000 Labour party votes and nearly 13,000 Green party votes.

Even beyond his conclusions, the cause of his concerns is frequently mistaken. It is not true that “The Green Party received one-third of their votes from specials” as is claimed. The party received a bit under 27% of its votes from special votes (for comparison, National received a little over 19% of its party votes from special votes).

Even though it wouldn’t actually make a different to the overall party vote, is it possible that there are people who enrol and vote in an electorate where they do not live? Yes. We’ve seen evidence of it: Wyatt Creech was first elected to Parliament after a 16-day High Court trial that traversed voter eligibility of several hundred voters: both Creech and his opponent Reg Boorman challenged the eligibility of a number of voters to vote, principally over where they actually resided. Creech succeeded in challenging 45 decisions to count votes and 8 decisions not to count votes, his opponent was successful in challenging 67 decisions to count votes and 9 decisions not to count votes with an end result that a loss by 7 on the official recount, became a win by 34 after the challenges (because of ballot secrecy, you’re almost always challenging voters in the dark, without knowing which way they voted, and there is some cross-over where they both challenged the same vote). The judgment is quite something: describing the circumstances of individual voters: one of the votes that had been disallowed, but which the High Court allowed, was described:

Vote 645

This voter was enrolled in the Wairarapa Electorate in respect of a home address at 29 Donald Street, Featherson. However, by reason of his employment as a relieving lighthousekeeper he travelled from lighthouse to lighthouse. He voted by special vote in the Wairarapa Electorate. His vote was disallowed by the Returning Officer. We find that he was qualified to vote in Wairarapa in accordance with s.37(3)(c) of the Act as he was absent from Wairarapa because of his employment which was of an itinerant nature.

Another vote was allowed after the Court determined that the full-time live-in secretary of a Residential Hall at the University of St Andrews in Scotland where the voter was living while attending a summer school of the Royal Scottish Country Dance Society was able to witness her declaration as she was sufficiently a member of the household of the special voter.

When courts look into these issues, they really look into them (in that Wairarapa election, there were a lot of people who felt they lived in the Wairarapa, but who stayed in Wellington during the working week, who should therefore have been enrolled in an electorate in Wellington. As noted above, this was the rule that applied at the time. As also noted above, Prebble personally voted to reverse the rule a couple of years later.)

But even if this is an issue, and even if it made a difference to party votes (which it doesn’t) this is an issue that is unrelated to the changes around special voting and enrolment that Prebble blames.

There is no reason to believe that people enrolling in the wrong electorate are advantaged in any subterfuge by doing so on election day. The same Electoral Commission checks on voter eligibility are conducted, and in fact, casting a special vote probably increases the scrutiny on the vote, as candidates are entitled to have scrutineers present during the official count and to present arguments to Returning Officers to allow or disallow special votes.

This right of challenge extends to judicial recounts, although recent recounts have tended not to look at this (one I assisted with involved the judge undertaking a review of a sample of special vote declarations to assess these, which included digging out enrolment forms to confirm whether a voter had chosen to enrol on the general roll on the Māori roll). If, as Prebble suggests, the recent Nelson recount did not look at special vote declarations, it is likely because no candidate saw advantage in requesting this, because they certainly could have done so. And Prebble’s observation that “The 147 special votes disallowed in Nelson were disallowed for form, such as failing to sign the declaration. There was no check on whether the 6248 people who special voted were entitled to vote.” is both not true (checks were undertaken, just will not have been challenged before the judge conducting the recount), but also misses the point that no further checks were done for ordinary voters either, which, recalling that most of the voters whose votes were disallowed for ineligibility by the Court in the Wairarapa election petition case cast ordinary votes (the election was on a Saturday, so they could simply vote from their Wairarapa home, irrespective of where they might live during the week).

Prebble, apparently of the view that ordinary votes are real votes, does not address the point that anyone erroneously registering well in advance of the election as an ordinary voter at the address of the home for the weekends is likely to face less scrutiny than someone who does so on election day. And of course, that hasn’t been the law for 34 years anyway.

The idea that allowing people to enrol on election day precludes scrutiny is ridiculous. Under the pre-2020 system Prebble seems to be pining for, voters could still enrol during the early voting period, and up until just before midnight on the night before the election. The same checks would take place at the same time as they do now. The assertion that “It is impossible to check the eligibility of electors whose names and addresses are secret until after they have voted” is also ridiculous. Special votes are not even opened until those checks are done, and candidates’ scrutineers can check the special vote declarations during the process.

Finally, Prebble’s idea that someone should commence an election petition in the High Court challenging the Party vote is silly on its face. You can’t bring an election petition in the High Court challenging voter eligibility to cast party votes, and if you brought challenges in election petitions in every electorate, success in finding people who had votes in an electorate they shouldn’t, would only wipe out their candidate votes, because voters who are entitled to enrol generally, who enrol and vote in the wrong electorate, still have their party votes counted!

And any candidate looking to spend lots of money on an extensive High Court proceeding to challenge the votes of special voters they think are not entitled to vote in the electorates they did, really ought to be asking themselves and their team why they didn’t do that during the three weeks of the official count, when they could have done it much more cheaply.

My guess is that there are a few people who are enrolled at an address which doesn’t meet even the looser Prebble-enacted current test for residency. Maybe it’s as many as were challenged in the election petition Prebble is likely recalling, while forgetting he voted to change the law a few years later. Challenging their votes in a close electorate race might make a difference to a local MP, but when the party vote is king, and their party votes would count for the party vote anyway, Prebble is really proposing to spend a lot of money on lawyers to achieve something that could have been done during the vote counting process for free, and mostly wouldn’t have worked anyway, because of a law change he supported allowing people to vote where they choose to make their home.