Electoral law litigation

John Bishop at NBR looks at the chances of litigation post-election, quoting electoral law expert of legal firm Kensington Swan:

Electoral petitions in previous elections have not affected the overall outcome of an election, as the impact had been confined to just one electorate seat in each case. That changes under MMP.

“The most obvious example is Tauranga. If New Zealand First gets three or four percent of the party vote nationwide, but Winston Peters doesn’t win back Tauranga, he’d have all the incentive in the world to litigate the result,” Mr Wilson says.

“And if he were to get an election result overturned, he’d bring back a group of MPs which would change the whole make up of Parliament, and potentially who forms the government.”

Now Hayden is I think incorrect here. The assumption he is making is that if a party on election night (or 2 days later at the return of the writs) does not qualify for list seats in Parliament (you need 5% party vote or at least one electorate seat) and it later qualifies (by way of winning an electorate seat in a electoral petition), then the allocation of list seats is redone.

I actually wondered about this scenerio last election. What would happen if NZ First got 4% and lost Tauranga, but then won it in an electoral petition. Would they just get the MP for Tauranga or would they also get four list MPs on top, which they would have got if he had been declared the winner on the election night?

Well I asked the Chief Electoral Office what they would do in this scenario, and their advice to me was that ther is no mechanism to revise the allocation of List MPs. The puts an emphasis on certainity, and once the List MPs are allocated, an electoral petition in an electorate seat can not cause the allocation to be revised.

Another issue over-looked is that not all sucessful electoral petitions lead to the losing MP being declared the winner. If the petition is about whether certain votes should have been allowed, then the court can declare the loser the winner, on the basis of receieiving more valid votes. If the petition is about over-spending, then a sucessful petition merely means the MP loses his or her seat and a by-election is called.

However by-elections can lead to the seat swapping hands, which can lead to a change to who has a majority in Parliament, so there will still be an incentive to have electoral petitions – esp as the law is so unclear.

Mr Wilson said the was having a chilling effect on campaigning.

“We’ve seen an increase in the number of people asking whether some action or statement they wish to make would be permitted or not under the EFA.

National’s Wellington Central candidate, former ACT MP and lawyer, agrees that the Electoral Finance Act is depriving voters of important information about the candidates.

He says voters aren’t seeing a lot of the normal activities expected four months out from an election.

This part is absolutely correct. Linda Clark also wrote on this issue in the Listener. The EFA has almost muzzled the ability of electorate candidates to even get their name known to voters. The $20,000 limit was ridiculously low to start with (50c a voter) as a limit for three months. As a limit for all year, it has killed off almost all communications.

Mr Franks expects candidates will do more face to face meetings because they don’t count against the candidates spending cap, but signage and mailouts were a different matter.

“I was looking to have an electorate office with the usual 2.4m x 1.2m sign.

“The Electoral Commission wrote to candidates saying that signs like that were a campaign expense, and the Commission assessed the value of standard sign at $6 per sqm which was over $17 a day.

“Including construction and removal that came to about $4 600 for a four month campaign. That was almost a quarter of the campaign allowance for just one sign.”

“Alternatively with the campaign spending limit at $20 0000, I could have sent one postcard to about two thirds of the electorate,” he said.

The limit should be at least $1 a voter for a 90 day period. Even that is just enough for two direct mail letters.

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