Victorian Electoral Reform-the problem, and what can be done

This post, like the previous one, is one on fairly parochial matters.

In my last post, I dealt with the issue of electoral reform in South Australia. While the reform proposed had its flaws, the South Australian state government is to be commended for at least making efforts to change the electoral system. The same, unfortunately, cannot be said for the state government of Victoria.

Victoria, like South Australia and Western Australia at present and the Federal Parliament up until this year, uses group tickets combined with the single transferable vote to elect its upper house of forty members. The criticisms I and others have made of group tickets in other jurisdictions apply for the most part here, though the rules in Victoria are somewhat different. In Victoria, each district, of which there are eight, elects five members for a four-year term. Votes above the line count as acceptance of that party's group ticket, and if voters wish to express their own preferences, they must vote below the line, for individual candidates. Victoria, unlike the other jurisdictions that use this system, allows voters to only number five boxes below the line.

Nonetheless, relatively few voters exercise this option. While the 8% rate is higher than that implemented at the federal level at recent elections, it is low enough to have little impact on the distribution of seats; while some might say that this reflects active voter support for party preference dealings, it does contrast notably with low follow rates for how-to-vote cards under the new system for the federal Senate. This suggests that voters may not be actively accepting the party deals, but perhaps rather being confused by the message from the federal Electoral Commission, still being promoted up to the last state election, that voters must number every box below the line.

In Victoria, the problem initially appeared less acute. At the first Legislative Council election under the aforementioned system, one member of the Democratic Labour Party was elected off 2.6% of the first preference vote from Labor, National, Family First and Country Alliance votes. The 2010 election saw this member defeated, with the lowest primary vote a party received a seat from being 11.7% for the Greens in Western Metropolitan.

However, at the most recent election, a total of nineteen parties contested at least one district, creating ample opportunities for preference swapping. This resulted in the election of several members with low initial support, as can be seen below.

District	Member	Party affiliation	Primary vote
Eastern Victoria	Jeffrey Bourman	Shooters and Fishers	2.44%
Northern Metropolitan	Fiona Patten	Sex Party	2.87%
Northern Victoria	Daniel Young	Shooters and Fishers	3.49%
Western Metropolitan	Rachel Carling-Jenkins	Democratic Labour	2.57%
Western Victoria	James Purcell	Vote 1 Local Jobs	1.29%

The above list shows the members elected with less than 25% of a quota (that is to say, less than about 4.15%). 

No personal judgement on these MPs should be considered when evaluating this system. It is safe to say that it is a relatively wide ideological cross-section. The issue here is whether they were fairly elected. 

Below is a list of where these candidates received their group ticket preferences from.

Member	Party	Group ticket votes from
Jeffrey Bourman	Shooters and Fishers	Australian Cyclists Party People Power Victoria/No Smart Meters Rise Up Australia Democratic Labour Party Australian Christians Family First Palmer United Party Sex Party Liberal Democrats
Fiona Patten	Sex Party	Voluntary Euthanasia Party Shooters and Fishers Liberal Democrats The Basics Rock’n’Roll Party Australian Greens Animal Justice Party Australian Cyclists Party
Daniel Young	Shooters and Fishers	People Power Victoria/No Smart Meters Palmer United Party Sex Party Australian Cyclists Party Liberal/National Coalition
Rachel Carling-Jenkins	Democratic Labour	Country Alliance Rise Up Australia Shooters and Fishers Party Australian Christians Voice for the West People Power Victoria/No Smart Meters Family First Liberal Democrats Liberal Party
James Purcell	Vote 1 Local Jobs	Country Alliance Family First Liberal/National Coalition Sex Party Democratic Labour Rise Up Australia People Power Victoria/No Smart Meters Australian Christians Liberal Democrats Shooters and Fishers

Some of these preference decisions may seem sufficiently democratic, like the libertarian Liberal Democrats, whose leader strongly supports liberalisation of gun laws, preferencing the Shooters and Fishers, or the Voluntary Euthanasia Party preferencing the Sex Party, which supports legalisation of euthanasia.

Others, however, are more questionable. For example, do voters for the Sex Party, which supports the legalisation of marijuana for recreational purposes, really want a Legislative Councillor from the Shooters and Fishers, whose NSW policy statement on the matter states that they want "increased education and information about the harmful effects of drugs together with police powers". The same preference decision was made for voters for the Cyclist Party. Or do voters from the Liberal Democrats want a Legislative Councillor from the Democratic Labour Party? These two parties have a whole host of policy differences, from free trade to same-sex marriage to foreign ownership of land. And yet the preferences of one went to the other.

The real question here is not whether these are the "right" decisions as determined by me. It is whether they are decisions that reflect the wishes of voters. Perhaps there are Liberal Democrats out there who want their next preferences to go to the Greens, or Sex Party voters who want their votes to go to the Shooters and Fishers. The current system, however, lets parties make these decisions through the group ticket system. 

A change to the federal system, where an above-the-line preference counts as only a preference for that party and where voters may cast as many or as few above-the-line preferences as they wish, would give this power back to the voters. If voters wish to make strange decisions, that is their prerogative, and that could result in members being elected with low primary vote shares. However, it is far less likely that this will happen under the new system, given that these artificially strong preference flows would not exist. 

Opponents of this change may argue that the federal system allows above-the-line votes to exhaust, if voters do not cast a preference for all candidates in the count. Nonetheless, the federal campaign to encourage voters to number at least six boxes worked successfully, suggesting that voters will cast preferences for more than one party. It is also worth noting that a vote exhausting may be a deliberate act; a voter may genuinely have no preference between further candidates.

Opponents may also argue that second candidates of parties are elected with low vote totals are regularly elected with low primary votes. Nonetheless, in terms of voter consent for the election of these members, this is a quite different matter. A person voting above-the-line for the Labor Party under the federal Senate system can clearly see exactly the candidates to which that vote will go; if the group ticket system is used, they would have to consult the long and complex list of group ticket preferences in order to determine where that vote will go. Hence a candidate elected on intraparty preferences under the federal Senate system has greater consent than one elected on interparty group tickets.

What can you do?

This is very much a section for Victorian consumption only.

The Andrews Government does not appear to have made public statements or introduced any legislation in support of repealing group ticket voting for any sort of replacement. This may reflect apparent ideological opposition to the change, as demonstrated by federal Labor, or mere unwillingness to irritate members of the crossbench required to pass legislation. Nonetheless, the South Australian Labor Party's proposal halfway through their term suggests that it can be done.

International Elections does not normally encourage readers to engage in political activity. But if you've read what I've written, and want to show your support for a change to the electoral system, there are a couple of things you can do. You can contact your MP (a tool for finding your electorate and contact details for MPs is here, click on your district than 'View Member' to see contact details) to show your concern and support for change. I have written a basic template for such a communication here.

It is worth noting that if you have limited time, the most important MPs to contact on such an issue would be from the Labor Party, given that their support is necessary to pass a bill through the lower house. A personal email to my local Australian Greens MLC has established their support for change, so you don't really have to bother with them.

If you wish to take this further, I am circulating a petition to the Legislative Council, that I hope to present through an MP. A copy of this petition is available here; if you wish to circulate it for signatures, please contact me (on Twitter, or by email in my Blogger profile on the sidebar) for details of where you can return it. Please note that signatures may only be presented if they are physically on the specific paper template, thanks to the antiquated rules the Victorian Parliament sets out for presentation of the petition.

Do South Australian voters get a Rau deal from the 'Voter Choice' Bill?

On 16 November this year, South Australian Attorney General John Rau introduced a bill into the House of Assembly (the lower house of South Australia's bicameral Parliament) to change the electoral system used to elect members of the Legislative Council. At present, members of the 22-member Legislative Council are elected eleven at a time for eight year terms; half face election at each election for the House of Assembly, the members of which serve four-year terms.

These elections use the single transferable vote system in one statewide district. However, the system has an important modification. Voters can either vote for one party ticket, which accepts an ordering of all the candidates in the election determined by that party and lodged with the Electoral Commission ahead of the election, or number every candidate in order of their preference. I have written about the severe flaws of this system in the past when used at the federal level, and many of the same criticisms apply to the South Australian system.

What the proposal means

If the bill is passed, South Australian voters will be faced with the same ballot paper (reproduced below) that they have received at past elections. However, the law changes substantially the functions of the above-the-line box.

South Australian Legislative Council sample ballot paper (Source: Government of South Australia 2011)

Under the current system, a vote like the one on the sample paper above would have been considered an adoption of the ranking of all the candidates that was submitted to the Electoral Commission before the election. Group C might have asked that an ATL vote for them next go to the candidates of Group A, then Group D, then B and E.

The new system changes the meaning of this vote. Now it only goes to the candidates of Group C. If all the candidates of Group C are excluded, the vote then exhausts. More importantly, voters may only cast one first preference above the line. So even if the voter voted 1 for Group C and 2 for Group A, the vote would only go to the candidates of Group C, and then exhaust. If a voter wishes to express preferences across party lines, they must vote below the line; the law creates a savings provision so that a first preference for the first candidate within a party group counts as an above-the-line vote for that party.

How would this work in practice? Well, the STV system initially allocates seats to candidates who receive a Droop quota ((votes/seats+1)+1). Once no candidate has a Droop quota, the candidate with the lowest number of votes is excluded, and their preferences. However, given that most South Australians vote above-the-line (96% at the last election), and that all above-the-line votes will immediately exhaust when their party does, this will mean that the exclusions will have a very minor impact, and it is most likely that the candidates which have the highest vote share after the process of allocating seats to candidates with Droop quotas will fill those final seats.

In effect, this means that the electoral system will be very much similar to the 'largest-remainder' method of party-list proportional representation. Each elected candidate within a party will receive exactly a quota of that party's vote before being elected, and the last candidate will receive the rest of that party's vote (the remainder).

How would it work?

It's worth noting that the largest-remainder system is designed to produce a generally proportional outcome, so the Legislative Council will likely continue to have a more proportional composition than the House of Assembly, which is elected in single-member districts using the single transferable vote. This means that the chamber can still fulfil its role as a check upon the powers of the Assembly; it may reject legislation, but cannot remove the government.

Nonetheless, the system will switch emphasis from attracting preferences to entirely attracting first preference votes. It would also cause a small change in the composition of the current Legislative Council, as can be seen below.

Party	Elected in 2010	Elected in 2014	Total	Change from GTV
Labor	4	4	8	0
Liberal	5	4	9	+1
Nick Xenophon Team	0	2	2	+1
Greens	1	1	2	0
Family First	1	0	1	-1
Dignity for Disability	0	0	0	-1

The Dignity for Disability Party won their seat in 2010 off preferences from other small parties, their first preference vote being only 1.2%. The new system would have given that seat to the Liberal Party. Family First won a seat off 4.3% of the primary vote and preferences from other parties; the new system would make that 0.52 quotas, to 1.55 for the Xenophon Team. It is possible that the new system could increase the number of below-the-line votes and make preferences a factor, hence giving that seat to Family First.

Michael Gallagher's 1992 paper on the subject of different methods of party-list proportional representation discusses effective thresholds for winning seats under these methods. He concludes that the threshold of exclusion; that is to say, the minimum number of votes a party can receive without securing a seat (adding one to this total will guarantee that party a seat) for the Droop quota and largest remainder system is 1/(s+1), where s is the number of seats to be allocated (this is in percentage terms). For South Australian elections, that would be equal to 8.33% of the vote. 

Distinct from this is the threshold of representation; that is to say, the smallest number of votes a party can receive and still receive a seat. For this particular figure, the equation is 2/(p(s+1)), where s is seats, and p is the number of competing parties. At the last election, this would be equal to 0.64% of the vote. A more general threshold equation, 75%/(s+1), gives a figure of 6.25%. 

Wasted votes

One advantage of the current STV system is that nearly all votes do go to an elected candidate. Given that a candidate must receive one quota to be elected, and the quota is (votes/(seats+1)+1), only enough candidates to fill all the seats may receive quotas; hence, the maximum number of votes that do not end up with an elected candidate cannot be more than votes/(seats+1) (8.33%).

The new system, however, would be more likely to disregard a larger number of votes. If we consider a vote that is not part of a quota or a remainder rewarded with a seat 'wasted', for my analysis of the last state election, 16.4% of all votes would be wasted, compared to the 8.3% of the vote left with candidates not elected in the actual election. These figures are relatively consistent for recent elections.

Nonetheless, it is worth noting that, to some extent, the current system lowers this figure to an unrealistic amount if voter preferences are to be legitimately consulted. If group voting tickets are to be done away with, getting this figure of only a quota wasted would require voters to cast a preference for every candidate or party group. This would lead to a high informal rate; when voters were required to preference every candidate for the federal Senate, informal rates larger than 10% were not uncommon. Usage of the federal Senate system, which has optional above-the-line preferences and potentially allows votes to exhaust, would increase this figure.

Labor's hypocrisy on exhausted votes

The South Australian Labor government's willingness to tolerate high exhaustion rates contrasts interestingly with Federal Labor's conduct during the debate over introducing optional preferential above-the-line voting. Labor opposed the changes, which passed nonetheless with support from the Greens and Nick Xenophon, on several grounds. One of them was the claim, made by South Australian Senator Penny Wong, that "It (the reform) will mean the votes of up to three million voters effectively going in the bin" and "disenfranchises more than three million voters—people who, at the last election, chose to vote for someone other than the major parties or the Greens". 

Ignoring, of course, what a load of nonsense these predictions were proven to be, I find it quite remarkable that the party that found it so undemocratic that above-the-line votes could exhaust is now introducing a system that guarantees above-the-line votes will exhaust.

 Why the state Labor government is not simply copying the federal system is somewhat confusing, and introducing preferences would improve on this proposal substantially. Nonetheless, the proposal does give voters certainty that their votes will count for their explicit choices only, and the value of preferences under GTV are very much questionable if preferences do not flow the way a voter wishes.

As always, Kevin Bonham has an excellent take on the matter, if you wish to read further.

Republican unified government and the Constitution

If you were surprised by the results of the United States elections, you are not alone. The unexpected election of Republican candidate Donald Trump to the Presidency, and the somewhat less surprising retention of both houses of Congress by the party, could give the Republican Party great control over the agenda in Washington for at least the next two years.

The current count gives Mr Trump 290 electoral votes to 223 for Democrat Hillary Clinton, with Michigan yet to be declared (Mr Trump has a narrow lead). This margin of victory in the College is comfortable enough that one or two 'faithless electors' (members of the Electoral College who do not vote with the candidate they were affiliated with on the ballot paper) could not deny Mr Trump victory. This is despite Mrs Clinton being likely to receive the most votes nationwide.

In the Senate, the Republican Party held marginal seats in Wisconsin, Indiana, Florida, Pennsylvania and North Carolina. The Democrats picked up Illinois and New Hampshire, but this was not enough to defeat the 54-44-2 (independents caucusing with Democrats) majority the Republicans held going in to the election.

Louisiana's Senate seat is yet to be decided; this state holds an election in which all candidates from all parties participate on Election Day; if no candidate secures a majority, a runoff will take place on December 10. This runoff will be between Republican John Kennedy, who won 25% of the vote in the first round, and Democrat Foster Campbell, who won 17%. In total, Republican candidates won 61% of the vote, so it looks likely that Mr Kennedy will win the seat, and the Republican majority will be 52-46-2.

In the House of Representatives, the Republicans appear to have lost seats, going from 247 to a current estimate of 239. Nonetheless, this is still a fairly comfortable majority. It is unclear how many votes the Republicans will end up winning; their House majority in 2012 of was off 47% of the vote compared to 48.4% for the Democrats; the politicised nature of drawing districts for House seats in the United States, combined with strong Republican control over state governments, means that congressional districts in several states have been drawn to apparently favour the Republican Party.

With such an apparently strong position, the Grand Old Party has defied expectations of doom. And now, some have expressed their concern that the Republican Party's strong hold over state legislatures could allow them to amend the Constitution.

Btw you need 3/4 of the state governments in order to amend the constitution. GOP is just shy of that rn. https://t.co/WIoeqOnSVk

— Arthur Chu (@arthur_affect) November 14, 2016

How is the United States Constitution amended?

The United States has been noted for having a rigid, hard-to-amend Constitution. The most common method of amendment is approval by two-thirds of both houses of Congress, followed by ratification by 75% of state legislatures.

In this sense, Mr Chu and those expressing similar concerns are correct. Only thirteen state legislatures are controlled by Democrats. Thirty-eight states are needed for ratification (since 75%*50=37.5, and 37 is less than this), and thirteen legislatures failing to ratify would indeed be the minimum required to block legislation. However, most states have bicameral legislatures, and one house would be sufficient to block ratification of an amendment. In this case, the Democrat position looks more secure. Democrats control one chamber in a further three states, meaning that an amendment on purely partisan lines would be somewhat more difficult than simply overturning the one most marginal Democratic legislature.

However, before the amendment process gets to the point of ratification by the States, approval by Congress is required. This would be the point where the content of an amendment would become somewhat relevant.

What sort of amendment would the Republicans wish to pass?

There are a number of amendments that senior members of the Republican Party, as well as Mr Trump, have either suggested their support for or implied their support for. Nonetheless, it is important to note at this point that unlike in Westminster countries, United States political parties are not nearly as internally disciplined. In most cases, registration and identification as a Republican or Democrat is done on voter registration forms, and there is relatively little control by party organisations over who is nominated. This means that there are substantial ideological differences between members of political parties. Various organisations compile 'ideology scores' that show these differences; as can be seen here.

One briefly popular idea for an amendment was the 'Federal Marriage Amendment', which would have required that all marriages in the United States be between a man and a woman. At the time when this amendment was most popular, several states had introduced same-sex marriage, and socially conservative federal Republicans were opposed to this. In the time since then, however, same-sex marriage has been legalised for the entire United States in the Obergefell v. Hodges case, and same-sex marriage has also earned public approval. The President-Elect, too, has expressed disinterest in the issue, describing it as "settled".

Another proposal, though much more on the fringe, is a constitutional amendment to ban abortion. This proposal has not been substantially discussed, but has occasionally been introduced into Congress as a means to overrule the decision of the Supreme Court in Roe v. Wade in 1974 that the United States Constitution protects abortion rights regardless of federal or state law. Nonetheless, such a proposal would be difficult to pass compared to the easier option of appointing judges to the Supreme Court that would rule in favour of abortion restrictions (approval of a judge requires only a majority in the Senate, compared to the sixty-six votes needed for an amendment). The President-Elect has declared himself in favour of this course of action.

A proposal supported less by the Republican Party than by Mr Trump is the idea that libel laws in the United States should be "opened up". Constitutional amendment could be required to achieve this aim, but other members of the Republican Party do not appear to have expressed views on the subject, implying that it is a pet project of Mr Trump's. This would make it very difficult indeed to amend the Constitution, given the non-existent institutional role the President is given in the amendment process.

Partisan ability to amend

Ignoring the actual content of any amendment, what would it take, however, for Republicans to win enough seats in Congress to theoretically amend the Constitution? In the Senate, Republicans would need to gain fourteen seats; in the House, fifty-one.

It has been noted before that in the Senate, the Democrats face a difficult map. Two United States Senators are elected from each state for six-year terms, with staggered terms meaning that a different group of States vote for Senators every two years. Below is a table showing the different Senators that will be up at the 2018 midterm elections for Congress.

As you can see, more than half of the Democratic caucus will be up for election in 2018. This is because 2012, when these Senators were last up for election, was a successful year for the Democrats, as Senators from the same party as the victorious presidential candidate (that year, Democrat Barack Obama) generally do well. Ten Democrats (assuming Mr Trump's narrow lead in Michigan survives) will be up for election in states Mr Trump won; only one Republican is in a similar position.

Nonetheless, a fourteen-seat gain would be a tough ask for the Republicans. That would involve unseating every single Democrat in a state Mr Trump won, as well as four from states won by Mrs Clinton (most of whom are relatively safe) and holding all of their incumbents. Democrats in red states, like Senators Manchin and Heitkamp, also tend to use the internal ideological flexibility given to them allows them to express views more attuned to the views of their states (both are considered to be on the right-wing of their party, which is reflected by the aforementioned ideology scores); Mrs Clinton had to appeal to more mainstream Democratic voters.

In the House, current counting has the fifty-first most marginal seat (assuming a uniform swing, the most Democratic district the Republicans would need to win) as Massachusetts' 9th district, won by Democrat Bill Keating with 56% of the vote with 34% for his Republican opponent. House members are elected for two-year terms, and will all be up for election in 2018. Now, this way of measuring the likelihood of such an upset has its flaws; it does not take into account potential changes in districts, and assumes a uniform anti-Democratic swing, which given internal ideological diversity would probably not happen. But it nonetheless represents the difficulty inherent for such a swing.

All this would be presumably expected to happen in a midterm election. Midterms are generally bad for the party holding the Presidency, since voters may view it as a way to punish or restrain an existing President without throwing them out of office.

Source: Dave Leip's Atlas of US Elections

Now, clearly, the Republicans could hold on to their unified government at the 2020 presidential and general election. However, more Republicans in the Senate need to be defended at this election, based on a stronger Republican result in 2014. The best prospect for large gains for the Republicans remains the 2018 midterms.

Conclusion

The 2016 election unexpectedly resulted in unified government for the Republican Party, under a controversial and radical leader. A Democratic weakness in the states that developed under Barack Obama's presidency has led some to conclude that this result can not only allow the Republicans to make their preferred legislation, but to amend the Constitution. Nonetheless, these claims are somewhat exaggerated, even at the state level. The likelihood of an amendment passing would depend on its content, but assuming complete Republican unity on such an amendment, the party would need to gain an unfeasible number of seats in order to make changes.

The Butler-Palmer proposal for a New Zealand constitution

Unlike most nations of the world, New Zealand does not have a written constitution. The process of how its government is appointed is governed by ordinary legislation; specifically, the Constitution Act 1986. However, unlike most constitutions, this legislation is not specially entrenched; nor can courts check the validity of legislation against it, since Parliament is considered the supreme body for national legislation. This system is inherited from the United Kingdom, which has a similar constitutional system.

Some opponents of this system claim that it provides little protection for individual liberties (New Zealand's 'Bill of Rights Act' has no validity in the courts), and that it makes the Constitution difficult for ordinary citizens to understand. It was these reasons in particular that appear to have encouraged former Labour Prime Minister Geoffrey Palmer and constitutional lawyer Dr. Andrew Butler to write a draft of a potential New Zealand entrenched Constitution. The document is available here.

The Constitution contains some interesting ideas, though it is mostly relatively gradual change from New Zealand's current constitutional system. At the moment, New Zealand has a unicameral parliament, elected by mixed-member proportional representation. A government is chosen by, and responsible to, this Parliament. All of these features would be preserved, and strengthened in the case of the electoral system. Nonetheless, changes are made to some parts of the nation's constitutional structure. The largest one of these is the abolition of the monarchy.

Republic of New Zealand

The first parts of the Constitution lay out the most immediate and substantial change; the replacement of the monarchy, with the Queen of New Zealand (who, coincidentally, is also the Queen of the United Kingdom, Canada, Australia, Jamaica...) represented by the Governor-General with a Republic. Under the current system, the Queen appoints a Governor-General (by convention, the Governor-General is a non-partisan figure appointed on the advice of the Prime Minister of the day) who then appoints a Prime Minister (generally the leader of the party or parties with majority support in the Parliament).

Under the new system, the Parliament would elect, every five years, a 'Head of State'. It is specifically stated that MPs would have a free vote on this matter, though MPs may still follow party lines on this matter in the hope of gaining a more influential position within the party. This Head of State has the formal power to appoint a Prime Minister, though under the new system they can only appoint the candidate elected by Parliament. They appoint Ministers, though this is on the advice of the Prime Minister only. The same condition applies to the Head of State's power to issue writs for parliamentary elections, to appoint ambassadors, and to promulgate legislation.

Regardless of what my readers may think about the virtues of republicanism, one potentially concerning issue exists with the manner in which legislation is promulgated. Laws passed by the House go to the Head of State for signature. In deciding whether to give approval to legislation, the Head of State must act "on advice from the Prime Minister and Attorney-General". This could potentially mean that Parliament's ability to legislate over the head of the Government could be jeopardised, given that the Prime Minister could simply advise the Head of State to veto legislation that Parliament had passed without his support.

This could be more of an issue in New Zealand's political system. Mixed-member proportional representation means that one party has never had an absolute majority in the House, and as such governments are dependent on support from other parties, perhaps with different ideologies. Were these other parties to disagree with the policies of the government, and were they to attempt to vote with the opposition on a bill, the senior government party, with a minority of seats, could simply veto that bill.

Of course, the general response would be that while New Zealand's (and Australia's) Governors-General have had authority to refuse assent to legislation, they have never done so by convention. This is true, but the Australian Constitution and the New Zealand 'Constitution'  do not include the requirement for the Governor-General to act on the advice of the Prime Minister, and thus the convention would be changed.

A better way of putting this would be to either give the power of promulgating legislation to the Speaker of the House  (as in Papua New Guinea), or to allow the Parliament to override the decision of the Head of State by simple majority and either require them to assent to the legislation (as in Morocco) or allow the Speaker of the House to do so (as in the former Kingdom of Laos). The Head of State could also be simply required to sign the legislation. Any one of these solutions would work just as well as the other, but one should be adopted to ensure Parliament is able to act as a law-making body.

Choosing a Government

The present system of choosing a Prime Minister by the Governor-General appointing the person who has the confidence of the House would be replaced under the new Constitution. Under the new system, the Parliament elects a Prime Minister from amongst its members. The Prime Minister must have majority support from the Parliament, which I take to mean that the Prime Minister would be elected by exhaustive ballot (MPs vote for candidates, the candidate with the lowest number of votes is excluded, a further round takes place amongst the remaining candidates. This process repeats until one candidate has a majority. The candidate who has a majority is then appointed by the Head of State as Prime Minister.

This method of appointing a Prime Minister is quite common in the Pacific region. Papua New Guinea, Vanuatu, Fiji, Nauru (though this is for the combined Head of State and Head of Government, titled the President) and Tuvalu all 'elect' their Prime Minister in this way. In theory, the system acts the same as the method used in other Commonwealth countries of appointment by the Sovereign; in both cases, the Prime Minister should have majority support in the parliament. However, it does provide some clarity to the process. Attempts to use the method of appointment by the Sovereign in countries that are more politically fractured, such as Nigeria, resulted in political violence and extended litigation; even in Australia, the dismissal of the Whitlam government in 1975 represented a case where the powers of the Sovereign were used in a controversial manner.

In this case, then, this represents a very minor change to existing practice in New Zealand. Nonetheless, it would appear to be sensible to take powers away from a Head of State who is meant to "endeavour to act as a non-partisan symbol of unity"; even more so when that leader is chosen for a fixed term by a simple majority of Parliament.  As is normal practice, the Head of State would then appoint a Cabinet, on the advice of the Prime Minister.

Fixed terms of Parliament, for four years, are established. Early elections may be held if three-quarters of Parliament vote for them, or if a majority of MPs vote no confidence in the Government and no new government receives a vote of confidence for fourteen days. This does give the option, for a government wishing an early election, of faking a vote of no confidence in itself and using its majority to block formation of a new government. Nonetheless, this tactic could not be effectively blocked without making it impossible for Parliament to be dissolved in case of a severe deadlock.

Parliament

The Parliament remains unicameral, and most features are again simply the current practice in New Zealand, but codified. The mixed-member proportional representation system is specified as the means by which Parliament is elected, meaning that it cannot be changed without a Constitutional amendment.

Certain parliamentary offices are specified in the Constitution. The Leader of the House, the Opposition Leader, and the Finance Minister are all in the document, with their roles vaguely outlined. This appears to be an attempt not so much to entrench these offices (which have existed in NZ since the evolution of the modern party despite not being in the Constitution) as to make the Constitution more effective in describing how government operates in the country. A committee system is also entrenched. The committees are given the right to propose legislation, and ministers are prohibited from serving on most of them.

Various other financial offices are entrenched, such as the office of the Auditor-General and the Reserve Bank, which is tasked with "formulating and implementing monetary policy designed to promote stability in the general level of prices" and "promoting the maintenance of a sound and efficient financial system".

Rights and Freedoms

Of course, the main goal of this constitution is to create some rights and freedoms against which legislation can be checked. Oddly enough, this section is towards the ending of the document, a rarity when a Constitution has a bill of rights planned out at drafting (the US's rights and freedoms provisions are towards the end, but they were not put in when the Constitution is written); the only example I can immediately think of is Rhodesia, and those were not strictly rights and freedoms (given that they were qualified to the moon, and were not judicially enforceable anyway).

The rights provided are quite broad, including freedom of expression, the right to privacy, freedom from discrimination on a wide variety of bases, freedom of religion, and rights to a fair trial. These rights, however "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". This gives some leeway for the government to qualify these rights, though is not uncommon in rights and freedoms provisions around the world. It is also obviously stronger than the current wholly unenforceable Bill of Rights.

Some more rights are provided in the economic area. Free education to the secondary level is guaranteed, and the government is also required to protect the environment (this, as far as I can tell, would be enforceable through the courts). A series of principles for economic policy are laid out, including rights to an "adequate standard of living", social security, and satisfactory health and safety conditions in employment. These principles are explicitly not enforceable through the courts.

The police and intelligence agencies are both specifically mentioned in this section. Both set out that activities of these agencies must be limited by law. Information collected by the security agencies must be approved by a warrant from a 'judicial officer'. Precisely why this provision exists when the right "not to be subject to arbitrary or unlawful interference with that person’s privacy, family, home or correspondence" is unclear; one would assume that, were judicial review to be robust, the courts
would establish guidelines for surveillance.

Other sections

Local government is entrenched in the Constitution, though with no specific powers being granted; rather, a series of principles for its organisation are set out. The office of an Ombudsman is mandated, as is a requirement that official information "must be made available to the greatest extent practicable".

Amendment of the Constitution is done by a vote of three-quarters of Parliament; quite a high threshold by international standards. The US requires a two-thirds majority of both houses of Congress (and ratification from three-quarters of the states) and India requires two-thirds of both houses and half the states: closer in the region, Vanuatu requires two-thirds of Parliament, and Papua New Guinea requires two-thirds as well, while Australia requires a majority in both houses and passage at a referendum by a majority of voters both nationwide and in at least four States. Back in NZ, a referendum is then required, with a majority of votes sufficient to pass the referendum (this is how I interpreted the provision; it does not state specifically that both are required, or that only one is).

An extra provision is added for legislation that is invalidated by the courts for incompatibility with the Constitution. This legislation may be 'validated', and hence considered to be in accordance with the Constitution, if a law to that effect is passed by three-quarters of Parliament (but no referendum). For a Constitution where much effort appears to have been put into making it easy to understand, such a provision would seem to hide amendments to the document in hard-to-find pieces of legislation.

One of the most interesting, and as far as I know unique, provisions is the requirement that a Constitutional Commission be held every ten years. This Commission is to be composed of six law officers (the Clerk of Parliament, the Chief Justice, the Ombudsman etc.) and six lucky members of the public. It is tasked with investigating amendments to the Constitution, and reporting to Parliament on the matter.

In general, the Butler-Palmer proposal has substantial merit for protection of human rights, as compared to their current protections, and for making the governing process clear. Nonetheless, in an effort to reach this goal some of the provisions appear too vague, while others seem even redundant. This could lead to difficulties when legislation went before the courts. In order for the document to be effective, clarity and specificity should be placed above educational value. The remainder of the document represents effective codification of current practices, though with some questionable changes involved in the process of transition to a republic.

Hong Kong 2016-Electoral systems against political parties

The small city-state of Hong Kong held general elections for their Legislative Council on September 4. Hong Kong, though technically a part of China (PRC), was granted substantial autonomy upon its return to China in 1997 by the British (it had previously been a British colony). The citizens of Hong Kong enjoy civil liberties not held by other Chinese, and, to some extent, they are able to choose how they are governed.

It is this extent that has been one of the key areas of debate in Hong Kong politics ever since the handover, and explains why the state's politics have traditionally been between pro-democratic parties (which support rapid transition towards democratic governance) and pro-Beijing parties (which support either no change towards democratic governance, or more gradual change than the pro-democrats).

Executive government in the region is controlled by the 'Chief Executive', and a cabinet of Secretaries appointed by him. The exact method of selection of this Chief Executive is, at present, by a 1,200 member 'Election Committee', which is indirectly elected and comprised of representatives mostly chosen by business interests. This has led to Chief Executives coming from the pro-Beijing faction of Hong Kong politics, which is usually in an electoral minority.

The Basic Law states that "the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures", though no specific timeline is laid down for this process. Last year, I wrote about the proposal for a new way to elect the Chief Executive; direct elections, but with candidates chosen by a somewhat unrepresentative nominating committee, and with the possibility of no candidates from the pro-democratic camp being permitted to contest the election. The change would have required amending Hong Kong's Basic Law, which needs support from two-thirds of the Legislative Council. As the pro-democrats have over a third of the seats, and as they refused to acquiesce to the proposals, the changes were not made.

The Legislative Council's composition is also a bone of contention. Out of the seventy members of the council, thirty are elected from what are known as 'functional constituencies'. These members are elected by people registered as having an interest in certain areas of business, like law, fisheries and banking. Five additional members are elected in a 'super' functional constituency, in which all electors ineligible to vote in one of the other functional constituencies are permitted to vote; only members of local councils may run as candidates in this functional constituency.

On average, each of the Functional Constituencies that went up for election this year had approx. 8,500 voters. This is compared to approx. 62,000 voters per seat elected in a 'geographic' constituency, in which anyone over 18 may vote and stand as a candidate (with the exception of people who refuse to acknowledge Chinese sovereignty over Hong Kong). There is huge variation between the seats, with the largest district (Education) having 482 times the number of voters as the smallest (Agriculture and Fisheries); both elect one member. 

This over-representation of business interests, which tend to support pro-Beijing parties, have ensured a majority for the pro-Beijing faction has prevailed since Hong Kong was returned to China, despite these parties never receiving a majority of the votes in the geographic constituencies. Pro-democratic parties forcefully argue against this, claiming that it is undemocratic, while pro-Beijing parties would argue that given that business makes a large financial contribution to Hong Kong, they should have a large say in governance.

The electoral system for universal suffrage elections

As stated above, however, Hong Kong does allow all voters to choose some members of the Legislative Council. Thirty-five members are chosen in the geographic constituencies; as the name implies, these members are elected from five specific geographic areas. Another five are chosen in the special functional constituency.

The first universal suffrage elections to the Legislative Council took place under British rule in 1991. This was for only eighteen seats, with twenty-one being appointed by the colonial Governor, and another twenty-one being chosen by functional constituencies. These elections took place in nine two-member districts, with voters having two votes for individual candidates. The two candidates with the highest votes would win. 

In general, this system would be expected to result in the party or faction with the most votes winning both seats, given that voters for a party would vote for both of that party's candidates. The results seemed to bear this out, with the pro-democracy parties winning sixteen seats (later increased to seventeen after a by-election) of the eighteen, despite only receiving 58.2% of the vote. This clearly had little impact on the government of the city, since the members were outnumbered by the appointed, generally pro-establishment members. 

At the next election, held in 1995, a number of changes were made to the composition of the Council. Twenty members would be directly elected, and they would be elected in single-member districts, though the electoral system would still be plurality (one vote, candidate with the most votes wins). Nine new functional constituencies were added.

These results were a landslide win for the pro-democratic parties in the directly elected seats; they won 17 with 63% of the vote. This landslide, along with relatively strong support in the functional seats, allowed the pro-democrats to win a narrow majority in the Council. This obviously displeased Beijing, which was scheduled to take over the city in 1997.

For the immediate time, Beijing destroyed the pro-democrat majority Legislative Council by appointing their own Elections Committee to choose a Provisional Legislative Council, which took over the role of the provisional Legislative Council.  However, upon the resumption of elections post-Beijing takeover, an important change was made to the electoral law; for the twenty directly elected members of the LegCo, the single-member plurality system was replaced by party-list proportional representation, in districts with an average magnitude of four members.

The results of the 1998 election, the first held after the handover, resulted in the three main pan-democratic parties securing 57% of the vote. This figure does not include independent candidates, some of whom may have been sympathetic to the pan-democrat cause. These three parties were able to secure thirteen out of twenty seats in the direct seats. However, once the results from the thirty seats elected by the functional constituencies and the ten elected by the Elections Committee came in, the narrow pro-democratic win in the directly elected seats were more than balanced out by the massive pro-Beijing majority on these other seats, allowing the pro-Beijing parties to win a majority.

For the most part, the statement made by the Hong Kong Electoral Commission that results with PR would "more accurately reflect the wishes of the electorate" was correct. At the same time, the Legislative Council was not representative as a whole of the electorate of Hong Kong. PR also had its clear advantages to the pro-Beijing political parties. But the advantages for Beijing do not stop with preventing pan-democrat landslides in the elected seats.

SNTVisation

The specific party-list electoral system that was used for the geographical constituency elections was the largest-remainder method with the Hare quota. This particular method is notable for, compared to other electoral systems, advantaging small parties. It sounds rather counterintuitive, but for largest-remainder proportional representation systems, higher quotas advantage small parties. The reason for this is that distributing seats by remainder is very advantageous to small parties, given that fewer votes are needed for a seat won by remainder than a seat won by quota. Higher quotas also reduce the remainders for parties that win seats with a quota, but do not do that for parties that reach a quota. If you're more interested in this, I would encourage reading Michael Gallagher's paper on the matter.

Under an electoral system where small parties are advantaged, the rational thing for a large party to do is to transform itself into several small parties. The advantages given to parties that win seats by remainder means that these small parties should aim to win seats by remainder only, thus they should aim for each of these lists to win one seat. If elections are between lists, each trying to elect one member, with the lists with the highest M votes being elected (where M is the number of seats to be elected), the electoral system becomes roughly equivalent to the single non-transferable vote.

This process did not happen immediately after PR was introduced, as can be seen below. However, it is in the last two elections that it has become completely pervasive; all lists elected only one member.

For small parties, with enough support to win one seat in a district, SNTV is an easy electoral system to manage. They run a single candidate, and concentrate all their votes on that candidate. However, for large parties with enough support to win more than one seat, there is substantial difficulty involved in maximising that potential. Run too many candidates, or spread your vote too thinly between those you run, and you run the risk of all these candidates receiving too few votes; run too few, or concentrate your votes on only one, and that candidate could win far more votes than other elected candidates, thus depriving your party of seats.

The advantages that the system gives small parties has led to a more fragmented legislature as the number of lists electing only one member has increased, as can be seen below (the 'effective number of political parties' figure measures, roughly, the number of equal-sized political parties equivalent to the actual makeup of the legislature).

The effect of the electoral system, therefore, appears to have been to stunt the creation of a large party on either side of the major political divide. It would not be unreasonable to say that the possibility of a large, unified anti-Beijing party could be concerning to Beijing's interests. This is why, even as the electoral system appears to hurt the pro-Beijing parties, they may be wary about changing it to reward party consolidation.

Did the electoral system hurt the pro-Beijing parties?

The issue of whether the SNTV system hurt the pro-Beijing political parties is somewhat important, given that these parties have authority to amend the electoral law if they so desire. At the 2012 election, there were a number of cases where the pro-democracy parties made nomination errors. This was especially substantial for the Civic Party, which decided to run one list in the New Territories West and Hong Kong Island seats with two incumbents, and encourage all their voters to cast a vote for this particular list.

The strategy backfired quite substantially. In New Territories West, the Civic list received 14.5% of the vote. The quota was 11.1% of the votes, as there were nine seats. As a result, the Civic Party was allocated one seat for their full quota, and then had 3.4% of the votes left as a remainder. This was not enough to beat the other parties; the last seat went to a pro-Beijing list with 6.8% of the vote. Had Civic successfully divided their vote into two, they could have beaten the bottom list and won two seats. Nomination errors along similar lines occurred in other Civic districts.

The usage of functional seats means that the contest in the geographic seats cannot be meaningfully considered important for overall control of the Council. However, given that a two-thirds majority is needed to amend the Basic Law (which entrenches many of the civil liberties given to Hong Kongers), the pro-democrats need to do relatively well in the elected seats in order to ensure that this law cannot be amended without consultation with them.

At this election, however, a substantial fragmenting factor appeared on the pro-democratic side. Localist candidates, supportive of increased autonomy and in some cases independence for Hong Kong, ran for election. These candidates appear to have taken most of their support from existing pan-democrats, which fragmented the anti-Beijing vote. Fragmentation, however, can be an advantage under this electoral system; as stated above, vote division that is a consequence of fragmentation can be useful to parties under SNTV. On the other hand, there were only three large pro-Beijing parties running, and they would have to make difficult internal tactical decisions about how to win the most seats.

So, did the SNTV system advantage the anti-Beijing parties? In order to calculate this, I compared the SNTV results to results using the D'Hondt system and party vote figures. The D'Hondt system with party vote figures is equivalent to what the SNTV system would look like if parties nominated the exact number of candidates as seats they can win, and then divided these votes perfectly between these candidates. This represents what the result would look like if vote distribution were not a factor.

The results of the analysis were that the pro-Beijing parties would gain two extra seats out of thirty-five elected seats. In both of these seats, the seats were lost due to an overly conservative nomination strategy; the party nominated too few lists to win the number of seats that they are entitled to. For example, in the Kowloon West seat, the pro-Beijing Democratic Alliance's one list received 18.8% of the vote, above the 16.7% quota. Under largest-remainder, this list's remainder of 2.1% was not nearly enough to win a seat. However, under D'Hondt, the party's vote was divided by two, meaning that the 9.4% left after the first seat was enough to beat the localist 'Youngspiration' candidate, with 7.4% to the last seat.

If the results of this election are anything to go by, then, it may be in the political interests of Hong Kong's pro-Beijing parties to introduce a system, potentially like D'Hondt, that rewards consolidated parties. However, as stated above, this could conflict with broader political goals in Beijing to encourage the pro-democratic parties to be fragmented and to have internal arguments.

A pattern? Macau's electoral system

Macau is another one of the territories returned to China by Portugal where China's political system does not fully operate. Like Hong Kong, Macau has a Legislative Council which is partially elected directly and partially elected through 'functional constituencies', though there are also seven members appointed by the Chief Executive. The Chief Executive, who performs a similar function to the identically named leader of Hong Kong, and is chosen by a similar, not directly elected, Elections Committee.

In Macau, only 14 of 33 members of the Legislative Council are directly elected, so there is a much smaller risk to the government of the pro-democratic parties winning a large number of seats. However, the electoral system used for those elected seats is uniquely designed to produce party fragmentation.

The electoral system for the elected seats is a variant of the highest averages method, like the D'Hondt method described above. However, when seats are calculated, the list of numbers used starts with one, and then are multiplied by the next number; the list goes 1, 2, 4, 8, 16.... A formula for a party's divisor would be 2^n, where n is the number of seats the party has already won. 

The effect of this is to very heavily penalise large parties, since their vote is divided into much smaller groups as they win more seats. The below chart shows how a party with 1000 votes would have their vote go down to 2 under the Macanese system after ten seats, compared to 100 under standard D'Hondt.

The effects of an electoral system that disadvantages large parties is, obviously, to encourage small parties, or to encourage large political factions to form small parties. This is certainly the case in Macau, where the largest party at the last election had merely 18% of the vote.

While there are only two regions to sample from, it would certainly not seem inconceivable that Beijing would have a political interest in keeping political organisations in the areas that are democratic divided. Electoral systems can have a substantial impact on political party systems, and the two chosen for these regions, by pro-Beijing political parties, encourage small, divided political parties.