"A trying operation under the influence of chloroform"

Handing someone a "Vote United Future" pamphlet on election day is an offence that can get you fined $20,000. Why is that, and should it be so?

A couple of weeks ago I posted the first of my thoughts on what changes we (or, rather, Parliament's Justice and Electoral Committee) might think about making to our electoral laws in the wake of the 2014 election campaign. My second bite at that cherry looks at the rules that govern what individuals may do on election (or "polling") day itself.

These rules are found in section 197 of the Electoral Act. That section makes it an offence, punishable on conviction by a fine of up to $20,000, to engage in a range of behaviours. I am interested here in the aspects of the section that restrain campaigning at or around the act of voting. These take a couple of forms.

First, there is a general prohibition on "in any way interfer[ing] with any elector, either in the polling place or while the elector is on the way to the polling place with the intention of influencing the elector or advising the elector as to the elector’s vote." Note that this prohibition applies at all times that the polling places are open.

Second, there are a bunch of more specific prohibitions that apply only on polling day itself. These include "hold[ing] or tak[ing] part in any demonstration or procession having direct or indirect reference to the poll by any means whatsoever" and "mak[ing] any statement having direct or indirect reference to the poll by means of any loudspeaker or public address apparatus or cinematograph or television apparatus." And they are underpinned by another general prohibition on:

exhibit[ing] in or in view of any public place, or publish[ing], or distribut[ing], or broadcast[ing],—

(i) any statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote; or

(ii) any statement advising or intended or likely to influence any elector to abstain from voting; or

(iii) any party name, emblem, slogan, or logo; or

(iv) any ribbons, streamers, rosettes, or items of a similar nature in party colours

This last prohibition gained some attention on a couple of occasions in the recent past. The first was when Parliament's Justice and Electoral Committee knocked back an attempt to toughen it up by removing a statutory exemption that allows individuals to wear ribbons, streamers or rosettes or party lapel badges on polling day. (I posted on that issue here). The second was when a bunch of current and former sports stars (including Israel Dagg, Jonah Lomu and Eric Murray) were reported to the Police for breaching it through Tweets sent out on polling day. (Again, I posted on that issue here.)

The obvious first question to ask about all these provisions is why are they in our statute books at all? Because note what they do; they stop some people from communicating with others about things that they want to talk about (and others may even want to hear about). That's a limitation on the right to freedom of expression guaranteed to us under the New Zealand Bill of Rights Act. Meaning that in order to be "good" law (as opposed to "valid, but pretty shitty" law) the limits must be "demonstrably justifiable in a free and democratic society". What, then, can justify stopping people from "interfering" with others as they go to cast their votes, or carrying out just about any form of electioneering activity on polling day itself?

Well, one reason might be to protect the "integrity" of the election process by ensuring that voters are not coerced or intimidated into voting one way or another. But the problem with this reason is that there already is an offence provision on the books to cover such a situation - that of using "undue influence". This crime is treated much more seriously in that it is a "corrupt practice" that can get you 2 years in jail. Furthermore, if the desire is purely to protect voters from coercion or intimidation or other such illegitimate forms of pressure, then the coverage of section 197 is far too broad. How exactly is the integrity of the election process threatened by someone handing a voter a "Vote National" pamphlet as they enter the school in which the polling station is set up, much less leaving a "Vote New Zealand First" hoarding up on your lawn on polling day?

So the reasons for prohibiting people from interfering with prospective voters and the enforced end to electioneering activities on polling day must lie elsewhere. In a very good forthcoming book, Graeme Orr from Queensland University's Law School traces them back to a Nineteenth Century desire to enforce a sense of decorum and sobriety on the election process. Legal moves to extirpate the traditional pageantry of campaigning from polling day itself went hand-in-hand with the introduction of the secret ballot, which changed voting from being a public spectacle into a matter of private conscience. Here's a contemporary quote extolling the effect of this change on Nineteenth Century elections:

An elector … instead of running a desperate gauntlet through corruption, drunkenness, violence, and uproar, walks, as it were in an even frame of mind, through a smooth, private avenue to discharge the political duties of citizenship. In a contested election under the ballot there is nothing to indicate the existence of tumult or angry passion – nothing to disturb the ordinary current of business – nothing to superinduce discord in neighbourly relations – nothing to provoke intestine broils; everything proceeds with the same tranquil placidity as if the community was undergoing a trying operation under the influence of chloroform, waking up to consciousness on the declaration of the poll … .

So rather than safeguarding the election process' ability to give a true reflection of the voters actual preferences, measures like New Zealand's section 197 are designed to shape the election experience in a particular way. They are intended to create a "space of silence" in which voters may quietly make their way to the voting booths without having to confront any reminders that there actually is a fierce competition for public power taking place.

If this historical preference for one sort of voting experience (quietest, decorous, restrained) over another (robust, noisy, tumultuous) is the basis for section 197 being our law, a number of questions then follow. First of all, is that past aesthetic choice a good enough reason today to limit the expressive rights of those who want to engage in various sorts of electioneering activities? After all, if some people simply enjoy having a quiet and peaceful trip to the polling station, but other people desire to go out on polling day and loudly cheer on their preferred candidate or party, why should the preferences of the former get to trump the rights of the latter? Look, for example, at how our views of things like "disorderly or offensive behaviour" have adapted as our social values have shifted - should not the same then happen here?

Second, even if we still think that there's some virtue in having a polling experience that is separated from the huly-burly of the election campaign, can that be meaningfully brought about now that the voting process occurs over a much longer time frame? After all, in 2014 voters were able to begin casting their ballots some 17 days before "polling day". In all, some 700,000+ voters did so over that period, making up about 30% of the total ballots cast. And while the general "don't interfere with voters on the way to the polling place" rule applied to these voters, none of the specific rules prohibiting polling day campaigning did. So does it make sense to have some 30% of the electorate casting their votes under one set of rules (amidst the full-blast of the ongoing electoral campaign) while the other 70% do so under another set of rules (under an enforced sense of decorum)?

(A further problem then arises with general "don't interfere with voters on the way to the polling place" rule in respect of advance voting. What does it mean for those wishing to engage in election-related activities in proximity to polling places? Especially when some advance polling places are in places like University campuses where candidates and parties are eager to reach large number of voters. How, and by whom, is that question decided?)

And third, even if we still think there's some virtue in maintaining a physical sense of decorum for contemporary elections, why should that enforced decorum extend into the virtual realm? The two worlds are not the same, so why should the same rules apply in each? Or, to put it even more bluntly, who cares what Eric Murray wants to say on polling day about who you should vote for (outside of those few thousand(?) souls who have voluntarily chosen to receive his wit and wisdom).

So I think the time is right to ask some pretty searching questions about section 197, questions that begin with "what exactly do we think our elections ought to look and sound like?" Like this? Or this? Or something in between?