Bryce Edwards: 10 ways to improve our elections

The Electoral Commission has released recommendations on how to improve our democracy. Victoria University’s Dr Bryce Edwards argues our politicians are likely to ignore many of them.

Last week the Electoral Commission released its report on the 2017 general election. It contained useful information about voting last year but, more importantly, it made a number of important recommendations to Parliament about improving New Zealand elections. You can read the report here.

Politicians will inevitably ignore some important recommendations from the Commission, which often makes suggestions that either go against the interests of some politicians and parties, or highlights issues that are regarded as too difficult to resolve and are therefore thrown in the “too hard” basket.

However, these issues deserve greater discussion and consideration. And pressure will need to be applied to the politicians if the public wants change.

Here are some of the more significant recommendations:

Recommendation 1: Fix MMP by dealing with earlier recommendations

The most important recommendation to come out of the report is for Parliament to again consider the 2012 Review of MMP. This report came up with some significant improvements, but was buried by the then-National government, which claimed there was not adequate consensus in Parliament to implement the changes.

Notably, this 2012 report suggested that the MMP threshold of five percent should be lowered, because it had proved to be too high, in terms of being a barrier to new political parties gaining election to Parliament. To back up this point, the Commission’s recent report includes a table of information about the declining number of parties representing in Parliament.

The Commission also points out that the number of list seats is declining, as the number of North Island electorates grow each time a boundary review process looks at population growth. It considers that this reduction in list seats is affecting “the diversity of representation, a key feature of the MMP system, and if it continues, could threaten the proportionality of Parliament.” Therefore, they recommend fixing the ratio of electorate seats to list seats.

Recommendation 2: Update the prohibition on electioneering on election day and during the advance voting period

The Commission says the current election day rules, which essentially prohibit electioneering, are inconsistent with the rules in place during the advance voting period. This means there are only very limited rules for the couple of weeks prior to election day – when about half of votes are now made – but suddenly things become extremely restrictive on the actual final day of voting. Therefore, the public are actively discussing politics on social media posts during advance voting, but can’t do so on the election day, which appears inconsistent.

The Commission points out they received 52 complaints from the public about social media use on election day, and four of these breaches were referred to the Police for possible prosecution.

One possibility is raised: “Exemptions could be provided for personal expression of political views by individuals other than parties or candidates and editorial comment.” But even this could be rorted, the Commission says, by politicians coordinating others to use the “exemptions to exercise influence over voters on election day.”

There are other problems, including that media websites are allowed to retain electioneering material on their sites for election day, but they are not allowed to advertise the sites.

Recommendation 3: Fix the election broadcast allocations and prohibitions

The rules around election advertising, especially relating to broadcasting, are seen as outdated by the Electoral Commission, which questions whether the regime is “fit for purpose”.

This is especially a problem in terms of the money allocated each election to the parties, which they can spend on television, radio, and now also internet advertising. Last year the Commission allocated $4.1m to parties, but notes the ongoing complaints about lack of fairness in these allocations, drawing particular attention to smaller parties who claim to be disadvantaged by the unequal distributions of monies.

The Commission recommends a review. But these issues fall into both the “too hard” and “self-interest” baskets of the current parliamentary parties who benefit from the broken system.

Recommendation 4: Update rules about the misuse of electoral roll data

Currently there is almost a “free for all” in the use of printed electoral roll data. All sorts of companies, such as debt collectors and marketers make use of the printed electoral roll in order to carry out their commercial activities. There are huge privacy issues involved, which the law appears to be ignorant of, and there are people who therefore choose not to enroll to vote precisely because they don’t want their residential addresses to be made public.

There are also increasing concerns about analytical manipulation of personal data, and cyber incursions, which is made more possible by advances in technology. So, if the electoral roll data gets into the wrong hands, there could be significant personal privacy breaches. And, of course, such misuse of electoral data could undermine confidence in the Commission and the electoral process.

The risk is made worse by the fact that the political parties are provided with the electoral roll in electronic form. This is a provision designed by the politicians so that their parties can more effectively send election advertising to voters and so forth. It’s questionable whether the parties should be given this data, and it seems that it’s an accident waiting to happen, as there are no procedures or guarantees that any of the 16 registered political parties will prevent this personal data falling into the wrong hands. The Commission certainly raises questions about whether recipients really use the data safely and appropriately.

The Commission points out that New Zealand is lagging well behind other countries, which have much greater restrictions on the use of electors’ personal information. As a way forward, consultation with the Privacy Commissioner is suggested. But the politicians will be at pains to lose any access to valuable electioneering tool.

Recommendation 5: Allow Māori voters to change rolls at any time

Māori voters should be able to switch between the general and Māori electoral roll at any time according to the Commission. Currently, people of Māori descent can only change during the Māori Electoral Option period, every five-six years.

The Commission points out that there is public demand to be able to change – for example in 2017 over 19,000 people applied to change roll types, despite this not being possible. Apparently, in 2016 there was cross party support to revisit this issue, so this recommendation is likely to proceed.

Recommendation 6: Electoral offences system needs updating

When someone is deemed to have breached election rules, the Electoral Commission’s only remedy for this is essentially to refer the case to the Police for prosecution. The Commission calls for a more nuanced system, in which the Commission could deal with more minor breaches, perhaps with fines.

Currently the Electoral Law is made up of many rules that have their origins in the 19th century, all of which carry significant penalties. The most contentious one is probably the rule against “treating”, which the Commission says is “outdated”, lacks clarity, and is a problem for parties holding events at which refreshments are served.

A substantial review of these laws is called for by the Commission. And although the politicians would surely welcome a chance to fix up some of the problematic rules they have to deal with, this area is a minefield of difficulty which could cause all sorts of prolonged debate about how to ensure elections are properly run without undue influence.

The Commission also reports that in the lead-up the 2017 election it received 55 complaints about breaches of election laws. Of these, only one was referred to the Police: “a bribery complaint involving a person going door-to-door offering money to vote for a party”.

Recommendation 7: Ban rosette wearing in polling places

Following last year’s election there were 342 complaints to the Commission about political party scrutineers wearing their party lapel badges or rosettes at the polling booths. Currently this is legal, but there seems to be an expectation that all voting places should be “campaign-free”, and therefore the Commission recommends a ban.

Political parties are also currently allowed to visit and phone voters on election day to encourage them to vote. The Commission makes no recommendations for change on this – and of course, the politicians would be automatically opposed anyhow. Apparently, there were 123 complaints about this following the election.

Recommendation 8: Allow voters to enroll on election day

Currently, voters can enrol to vote right up until election day. They can even enrol to vote at the same time that they make an advance vote in the two weeks leading up to election day. And of course, there are always a number of unenrolled voters who attempt to vote on election day, and have to cast a “special vote”, but have these disallowed. In 2017, 19,000 people had their votes disallowed. But the Commission suggests they should be allowed to enrol voters on election day.

Recommendation 9: Introduce a fixed date for elections

The current rules for setting the triennial general election date are deliberately loose, allowing incumbent governments the choice of when to go to the polls. The Commission raises the prospect of changing the law to provide for a fixed election date – they suggest some discussion about this. They say that this would provide more certainty for voters, campaigners and candidates.

The Commission also notes that the last possible date for the next general election is November 21, 2020.

Recommendation 10: Update where voting booths can be sited

The locations were people can cast their vote should be modernised according to the Commission. Currently there are a number of prohibitions relating to the sale and consumption of alcohol, which was historically meant to prevent voting in pubs where undue influence might occur. But now the Commission wants to set up booths where voters regularly gather, such as supermarkets and shopping malls.

In fact, in 2017 the Commission was remarkably successful in setting up advance voting booths in such places. But for election day, the rules are stricter, which meant that the booths had to be removed. There are also existing rules about how the votes from such booths are counted, which means modern locations for voting are restricted.

Such overly restrictive rules are likely to be updated, as all politicians are very keen that voter turnout is increased.

Finally, there are plenty of other recommendations of various levels of importance in the report. For example, the Commission suggests that the votes of dead people should be allowed. This might not be as strange as it sounds. With the rise of advance voting, there is a greater chance for people to cast a vote in the couple of weeks leading up to election day, but then die before the votes are counted. Currently the rules mean that the Commission has to disallow such votes.

There was one particular public campaign in 2017, involving a petition, when a 19-year-old cast an advance vote but died, and her community wanted to ensure her vote counted. The Commission says it recommends a “change to allow a person’s vote to be counted if they have voted in advance and die before election day”.

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