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Jordan Williams

Jordan Williams is a Wellington based commercial and public lawyer with a passion for constitutional issues. He is a classical liberal, preferring minimal government intervention in the economy and maximum freedom to individuals. Jordan is best known for his work as spokesperson for the Vote for Change electoral referendum campaign.

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NZCPR Guest Forum
Review of MMP and why it sets a dangerous precedent
Jordan Williams
25 March 2012

Introduction

The decision by New Zealanders to keep MMP means that any changes that come as a result of the “review” of MMP will be those the politicians prefer to implement. This piece discusses the scope of the “review”, some desirable changes to MMP and the need for our politicians to put any changes to our voting system to voters.

Background

The choice to hold the referendum with the election, the sneaky inclusion of the MMP “review”, the Rugby World Cup and an organised union effort ensured that MMP is here to stay.

During the referendum campaign Vote for Change argued strongly that the “review” was flawed for two reasons. Firstly, MPs will determine what (if any) changes occur with no guarantee those changes will be put to Kiwis to vote on. By ticking to keep MMP, New Zealanders have left the fox to guard the hen house. Secondly, Parliament set terms of reference so tight that little can result to “fix” MMP anyway.

The scope of the MMP “review”

The matters that the Electoral Commission must review are:

(a) the five percent threshold;

(b) the “one seat” threshold ;

(i) from the effects of population change on the number of general electorate seats; or

(ii) if a party's constituency candidates have won more seats than the party would be entitled to as a result of the party vote;

(d) dual list and electorate candidacy;

(e) party's ability to determine the order of candidates on its party list and the inability of voters to rank list candidates in order of preference (list order determination); and

(f) any other feature of the voting system referred to the Commission by the Minister of Justice or the House of Representatives.

The Commission may consider other aspects of MMP however MPs excluded the politically inconvenient issues of Maori representation and the number of members of Parliament. Nothing has been referred to the Commission under (f).

Thresholds

Most of the public discussion on the “review” is likely to be focused on the thresholds. A common criticism of MMP during the campaign was the “one-seat” threshold rule. The rule applies when a party’s candidate wins an electorate seat and allows that party to receive its full allocation of seats, even if it does not reach the five percent party vote threshold.

The rule allowed five ACT MPs into Parliament in 2008, thanks to Rodney Hide winning Epsom. That was despite ACT receiving only 3.65 percent of the party votes. New Zealand First, despite receiving 4.07 percent, did not get a single MP.

Voters for Change has publicly called for the one seat threshold to be abolished. A system that purports to be proportional should not have a rule that is contradictory and undermines the confidence of what MMP tries to achieve.

The party vote threshold is a more difficult question. Most left-wing groups are arguing that without the one seat threshold, five percent is too high for new parties to get into Parliament. The center-right may consider a reduction in the party vote threshold to three or four percent to allow a Christian party or ACT replacement into Parliament.

But we should be cautious of a lower threshold that increases the chance of further fragmentation of Parliament and more complex governing arraignments. More small parties holding the balance of power inevitably leads to more government spending as a result of post election negotiations. MMP allows the party or parties holding the balance of power to force Labour and National to spend money placating the small party’s particular voting bloc.

If there was no threshold at all, the Bill and Ben Party (a joke political party registered by two comedians) would likely have held the balance of power after the 2008 election. The best party vote threshold is therefore a judgment call.

Proportionality and overhang

The Commission may have difficulty assessing the proportionality of electorate seats with the growing population (as it is required to do) without commenting on the number of MPs as a whole.

Winning an electorate seat under MMP merely results in that party receiving one fewer list MP. That is the key difference between MMP and Supplementary Member, the system Vote for Change favoured. Under Supplementary Member the party vote proportionality was only applied to the list MPs, not the whole Parliament.

The population size (and therefore the number) of electorates is currently determined by dividing the South Island population by 16. Because the proportion of New Zealanders living in the South Island is decreasing (exacerbated by the Christchurch earthquakes) the number of electorates will increase when electorate boundaries are redrawn after the census.

The Commission will be cautious to ensure that the number of electorates does not cause “over-hangs” (where a party wins more electorate seats than the number of seats it would otherwise be entitled to). Increasing the number of electorates without increasing in the number of list MPs, and the overall size of Parliament, would give results similar to Supplementary Member. The 16 seat South Island “quota” may need to be examined unless the size of Parliament increases (the size of Parliament is currently being reviewed by a separate Constitutional Review Panel).

The overhang provision, that increases the overall number of MPs when a party receives more electorates than its party vote entitles it to, is likely to be examined. Voters for Change will be submitting that provision be removed meaning that the number of MPs would not vary from 120.

Dual candidacy

Dual candidacy enables a party’s candidates to contest electorate seats while also campaigning for their party and standing on the list at the same time.

The main objection to dual candidacy is that it allows for rejected electorate MPs to sneak back into Parliament on party lists. Dual candidacy may prevent electorate MPs from standing up to their party bosses to protect their constituency’s interests as the incentive to retain a high list position applies even if the MP wins an electorate.

There are some disadvantages to abolishing dual candidacy. Some senior MPs would not be on party lists, and other MPs and Ministers that choose to only run on the list may have little reason to leave Wellington. Analysis by the Maxim Institute suggests that sitting electorate MPs who lose their electorate race are usually allocated low list positions at the following election anyway.

List order determination

Open lists, whereby voters can influence the order in which list candidates are elected, are an attractive way to decrease the power of party hierarchies. Candidates have a greater incentive to campaign directly to voters. If a particular candidate receives enough votes, he or she may be elected as a list MP despite not being high enough on the party list to otherwise get into Parliament.

The difficulty is that it makes voting papers very large and complicated. To be effective open lists require an engaged electorate.

Voters for Change is likely to endorse a middle option that strengthens the internal party processes for determining list rankings. Currently the Electoral Act only requires party lists to be determined by a democratic procedure. The result is that, with the exception of the Greens, the governing bodies of the parties determine the lists. Voters for Change would like to see a requirement that party membership, not party bosses, determine the order of lists. We think that ensures that list ranking is competitive and informed, but does not rely on just the party hierarchy.

Put the changes to the people

The main theme Voters for Change will be emphasising in its submission to the Commission is its concern that the “review” process sets a dangerous precedent for constitutional change. Kiwi voters will have no opportunity to reject any changes the politicians propose after the Commission has reported.

Our voting system should be controlled by voters. The “review” of MMP should have occurred before the 2011 referendum so that the changes could be put to the people. Parliament, by putting the cart before the horse, has risked the legitimacy of the changes that may result from the “review”. Our politicians should ensure that proposals are put to the people.

The problem is easily solved. Labour and National must do more than require cross-party consensus on electoral matters. They should ensure changes to our voting system will be put to the people in referenda. The current approach implies a belief that our electoral system is for politicians. It is not. Changes should be approved by voters, not the very people likely to benefit.

Conclusion

The MMP “review” process will make screwing the scrum tempting. We must stand against such a path and prevent the MMP “review” from turning into National’s version of the Electoral Finance Act, a tool used by politicians for their own political advantage.