8 October 2005

Electoral petitions: by-election or next highest polling candidate wins?

I'm not convinced that a by-election is the necessary outcome of Peters succeeding with his electoral petition in Tauranga (although I am aware there differing views on this). I think the High Court has the power to declare the next highest polling candidate (although whether they do so may depend on the factual context). My analysis (following only brief research - E&EO!) is as follows: The Electoral Act sets up two means by which an allegation of "corrupt practice" (ie, knowingly overspending under s213(3)(a)) can be dealt with: - A prosecution for breaching s213(3)(a). - An electoral petition challenging the result in a constituency seat under s230. The prosecution path is relatively straight-forward because it happens independently of a challenge to the outcome of an election. If convicted, the MP's seat is declared vacant under s55(1)(e). As a consequence, under s129, a by-election is held. (And, of course, the MP guilty of a corrupt practice can't re-stand because they will be on the Corrupt Practices List and disqualified from voting/standing for 3 years.) However, if the issue arises in an electoral petition (as in the present Clarkson/Peters situation) I think the High Court has the power to declare the next highest polling candidate the winner of the seat: - If a candidate is found guilty of a corrupt practice under section 237, the “his or her election is declared void”. - Under section 243, the High Court then certifies the outcome of the petition, namely “whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void”. - My view is that the High Court’s power is threefold: declaring that the present winner didn’t win, declaring that another candidate won, or declaring the entire election (in that electorate) void. The different views, I think, arise from the issue about whether a voiding a candidate’s election voids only his or her election or the entire election (in that electorate). I think there are a number of factors which suggest the former is a possibility: - Section 238 specifically empowers the court to avoid the election if corrupt and illegal practices have prevailed such that it is reasonably supposed they affected the result. This seems to allow a wider power to declare the entire election void; the power in section 237 seems narrower and pertains solely to the candidate who is guilty of wrongdoing. - The fact section 55(g) refers to a vacancy being created as a result of an electoral petition is neutral, that is, it does not necessary trigger a by-election for the vacancy; it simply provides for the certified result of electoral petition to be implemented (electoral petition sometimes take months to determine – well after the original winner was sworn in in Parliament). - Overseas caselaw (below) contemplates the power to simply disregard the votes cast for a disqualified candidate, to (re-)compute the result of the election, and to declare the properly elected candidate. Unfortunately, the issue does not appear to have been considered before in New Zealand. It nearly was an issue in Creech v Boorman where the original winner of the seat, Boorman, was found guilty of a corrupt practice for overspending. However, the Court did not need to determine the consequence of voiding his election because it had already determined that Creech was the duly elected after a number of votes were invalidated. I’ve been searching for some overseas authority on this point. (Australia and the UK seem to have similar but not identical wording in their electoral legislation.) The Australian courts have adopted the position that whether votes for a disqualified candidate are simply disregarded and a new result is declared or whether a fresh election is required depends on whether voters’ real intentions can still be determined: - In Re Wood (1988) 78 ALR 257, the High Court of Australia ruled that a further election was not needed after the winning candidate for a Senate election was declared void (not an Australian citizen); the (preferential) votes for that candidate could simply be disregarded and a new winner declared. - In another case, Sykes v Cleary (No 2) (1992) 109 ALR 577, the HCA ruled that it should void absolutely the election for the NSW Senate because a winning candidate was not qualified to stand (because he was a civil servant); amongst other things, they said disqualification of the candidate and preferential system of voting because a “special count could result in a distortion of the voters’ real intentions because the voters’ preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the [disqualified candidate]”. - In Free v Kelly (No 2) (1996) 138 ALR 649, the HCA reiterated that the relevant principle was whether “an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters’ true legal intent or, conversely, would not result in a distortion of the voters’ real intentions”. - See also Scott v Martin (1988) 14 NSWLR 663 (election of candidate voided for bribery) where the Court recognised that the power to declare a next highest polling candidate “could be exercised appropriately in other circumstances” but declined to do so in that case and instead voided the entire election. The UK courts take the view it depends on whether the facts giving rise to the voiding of a candidate election were known to voters before they cast their votes. - In Drinkwater v Deakin (1874) LR 9, Brett J said:
I accept that which seems to me to have been always admitted to be the law before the case of R. v. Tewkesbury Corpn., viz. the proposition which I have expressed, as generally applicable to all cases where notice of the law as affecting any subject- matter is material, that is to say, where by the law, if certain facts exist incapacity exists, and where by the law, if the law were known to the elector, his vote would be thrown away if he persisted in voting for the disqualified candidate, he cannot, if the facts exist to his knowledge, or if he have notice of the facts equivalent to knowledge, which by law produce incapacity for election in the candidate, render his vote valid by asserting that he did not know that the facts by law produced such incapacity, or that his vote would be thrown away if he voted for such candidate. Applying those principles to the present notice, if it were the law that personal bribery rendered the person guilty of it incapable of being a candidate I should have thought that the notice was sufficient.
The candidate had been disqualified because he bribed voters (by allowing his tenants to kill rabbits on his estate). As this fact and potential disqualification has been made known to electors by his opposing candidate, the next highest polling candidate was declared elected. - Similarly, the Queens Bench in Re Bristol South East Parliamentary Election [1961] 3 All ER 354 declared the next highest polling candidate the winner after a candidate was disqualified (peers cannot stand for House of Commons) because the facts giving rise to disqualification were known to voters before they cast their votes – in that case, through a press release by the opposing candidate. (Key legislative provisions in the comment field)


Dean Knight said...

s55.How vacancies created—
(1)The seat of any member of Parliament shall become vacant—
(a) If, otherwise than by virtue of being a head of mission or head of post within the meaning of the Foreign Affairs Act 1988, for one whole session of Parliament he or she fails, without permission of the House of Representatives, to give his or her attendance in the House; or (b) If he or she takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a foreign State, foreign Head of State, or foreign Power, whether required on appointment to an office or otherwise; or
(c) If he or she does or concurs in or adopts any act whereby he or she may become a subject or citizen of any foreign State or Power, or entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power; or
(ca)if he or she ceases to be a New Zealand citizen; or
(cb)if he or she accepts nomination as, or otherwise agrees to be, a candidate for election, or agrees to appointment as—
(i) a member of Parliament (or other governing body) of a country, State, territory, or municipality, in any country other than New Zealand; or
(ii) a member of any governing body of any association of countries, States, territories, or municipalities exercising governing powers, of which New Zealand is not a member (for example, the European Union); or
(d)If he or she is convicted of a crime punishable by imprisonment for a term of 2 years or upwards, or is convicted of a corrupt practice, or is reported by the High Court in its report on the trial of an election petition to have been proved guilty of a corrupt practice; or
(e)If he or she becomes a public servant; or
(f) If he or she resigns his or her seat by signing a written notice that is addressed and delivered to the Speaker; or
(g) If on an election petition the High Court or Court of Appeal declares his or her election void; or
(h) If he or she dies; or
(i) If he or she becomes mentally disordered, as provided in section 56 of this Act; or

s237. Avoidance of election of candidate guilty of corrupt practice—
Where a candidate who has been elected at any election is proved at the trial of an election petition to which section 229(3) of this Act applies to have been guilty of any corrupt practice at the election, his or her election shall be void.

s238. Avoidance of election for general corruption—
(1)Where it is reported by the High Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any constituency candidate or constituency candidates thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the constituency candidate's election, if the candidate has been elected and is a respondent, shall be void.
(2)Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices.

s243.Certificate of Court as to result of election—
At the conclusion of the trial of an election petition to which section 229(3) of this Act applies, the Court shall determine whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void, and shall forthwith certify in writing the determination to the Speaker, and the determination so certified shall be final to all intents and purposes.

Graeme Edgeler said...

The facts of this case would appear to be similar to the English cases you cite: Peters made it quite clear to everyone that he believed Clarkson had overspent, and that this could mean Clarkson's election would be voided.

The question then arises about whether what Peters was saying (and I don't really remember what it was, but suspect it differed slightly on each occasion he brought up the possibility) would prevent his reliance on this.

Contrast the following scenarios:

1) Peters says Clarkson's overspent and that if Clarkson wins on election day he might take an electoral petition to have Clarkson's election voided.

2) Peters says Clarkson's overspent and that if Clarkson wins on election day he might take an electoral petition to have the election voided.

3) Peters says Clarkson's overspent and that if Clarkson wins on election day he might take an electoral petition to force a by-election.

We operate on the assumption that the High Court does have the power to consider options, but if Peters himself has told people that there would be a by-election could he be estopped from arguing that there shouldn't be? If people believe (because of something Peters said) that electing Clarkson would at worst result in a by-election, despite the allegations of breaches of electoral law, should other intentions be ascribed to them?

Dean Knight said...

Yes indeed - the principle of prior notice works in some cases but perhaps not in some others. Thinking out loud:

- I suspect the Court will be incredibly cautious in this area (courts (usually) hate *interferring* in the democratic process) and, if there's any doubt, it wouldn't surprise me to see a court turining it back to the people with a by-election.

- However, the prevailing principle in the UK seems to be focussed on whether voters' votes could be "thrown away" because they were cast with notice that there was a risk they might not count. At the end of the day, that *risk* arising in your 3 scenarios - although in the latter 2, there remained a prospect that the might still be a further opportunity to vote for another National candidate (vis vote against Peters).

I must say I was somewhat surprised to find that the courts have such a broad discretion when this arises (subject to the question of how these principles overlay our MMP based Electoral Act!). I had thought there would be a clear consequence without needing to "second-guess" the intentions of voters...

Anonymous said...

Thanks for this fascinating discussion Dean (and Graeme)!

I don't suppose I could tempt you to have another go at explaining your exegesis of 55(g)? And how exactly the High Court's views about any matters beyond the putative winner's election being voided could poossibly enter into the matter?

Where I'm coming from:
I desperately want it to be a straightforward matter - election petition leads to declaration that the winner's election is void, which creates a vacancy, which means a by-election. End o' story.

On the one hand you seem to suggest that there's a gap in that chain at the final step - between a vacancy being declared and a by-election being held (assuming we're not close to the next elections or what not). But I don't see that there is under s.129 (assuming the Speaker's satisfied that there is a vacancy).

On the other hand you also seem to suggest a gap in the chain at it's second link: that the High court might be able to void the putative winner's election yet not the (electorate's) election as whole. But, again, I don't see it. The court makes a finding of the former sort alone (takes no position on the latter), and then the 55(g) chain kicks in: in virtue of the winner's election being voided, there's a vacancy, hence a by-election.

So I'm puzzled by what you say. Were you point to one problem or two? If two can you make either more plauisble. What am I not getting?

cheers. -- s.g.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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