And whosoever was not found written in the book of life was cast into the lake of fire

The Justice and Electoral Committee will soon be reviewing the 2014 general election. Here's the first of my thoughts on what it might profitably look at.

After every general election, Parliament's Justice and Electoral Committee holds an inquiry into how things went during it. This is A Good Thing, as it provides an opportunity for looking at (and sometimes even fixing) little anomalies in our electoral processes - a kind of continuous improvement exercise, if you will.

The 2014 election is no different. The Justice and Electoral Committee already has announced its inquiry, with a closing date for submissions of 31 March. (You can make one here, if you are so inclined.) Because a part of my summer research programme has been looking at legal issues that arose out of the 2014 election, I'll be providing it with my views in due course. And because I'm still too much in holiday mode to try to engage with such complicated and important issues as the Charlie Hebdo shootings, much less what the Police should do about speed limit enforcement (but see here), I thought I'd eke out a few cheap posts by trying those views out on you first. With luck you'll save me from making a complete fool of myself in front of the likes of James Shaw and Jono Naylor.

The first issue I'm interested in is voter enrolment - or rather, voter non-enrolment. I'll come to this the slightly long way round by first noting a change in voting patterns that took place in 2014.

Following changes made in 2010, during the 17-day long period in which polling stations are open before polling day, any enrolled elector is permitted to receive and cast their ballot at these places just as if it were polling day itself. Because casting an “advance vote” is now so straightforward, doing so proved to be very popular in 2014; by polling day some 717,579 ballot papers had been received, amounting to 29.7% of the total votes cast. That's more than double the 334,558 advance votes cast in 2011.

This increase in advance votes then has potential implications for a bunch of different areas of our electoral law - one important one is the way in which electioneering on polling day is regulated. I'll post on that issue in the future. But for now I want to look at why this increase in advance voting might matter for the issue of registering as an elector.

Anyone who is not registered as an elector (or, who is unsure if he or she is properly registered) can apply to do so at any point during this advance voting stage simply by filling out and returning the relevant form. Having done so, she or he immediately may cast a ballot in the form of a “special vote”. (A special vote is required where a person's name does not appear on the published electoral roll of the district in which she or he is casting a ballot.) Provided the enrolment application is accepted and the special vote declaration is correctly filled in, the special vote will then be a valid one that counts towards electing members of Parliament.

However, in order to cast a valid ballot, prospective voters must be registered as electors (or have applied to register as electors) before polling day itselfIf you ain't registered, you can't vote; and there is no provision for polling day enrollment in New Zealand.

Consequently, at every election a not-insignificant number of special votes are rejected because those casting them are not properly enrolled to vote. In 2014, this amounted to some 27,467 ballot papers; or around 1 percent of the total valid votes cast. Not enough to meaningfully change the election result perhaps, but still the equivalent of (say) all the votes cast in the Manurewa electorate. Also, that figure was some 7,700 votes, or more than 1/3rd higher, than was the case in 2011.

Furthermore, these disallowed votes are unevenly distributed across electorates. The highest numbers are found in the Maori electorates and those South Auckland seats with a large proportion of voters who are from Maori or Pacifica communities. A total of 4911 special votes were disallowed in the seven Maori seats because the person casting it was not properly enrolled, which equates to about 3.3 percent of the valid votes cast in those electoral districts. Mangere, Manukau East and Manerewa each saw over 1000 special votes disallowed because the person casting it was not properly enrolled, which equates to about 4 percent of the valid votes cast in each of those electoral districts.

In contrast, the lowest numbers of disallowed votes tend to occur in the South Island rural seats, which have a quite different ethnic makeup. Of the ten electoral districts that had less than 200 special votes disallowed because the person casting it was not properly enrolled, eight were in the South Island and seven were predominantly rural seats.

These facts might then give rise to a particularly nasty suspicion. Perhaps those in charge of deciding whether to allow or disallow special votes are acting in a haphazard or inconsistent fashion, treating different electorates in a different manner? Or, to put it more bluntly, maybe the electoral officials are more inclined to disallow the votes of some groups than they are others. Fortunately, we can be certain that this is not the case.

Following the 2014 election, Hone Harawira requested a judicial recount of the vote in the Te Tai Tokerau electorate, which had the highest proportion of rejected special votes in the country. (The 947 special votes disallowed in that electoral district because the person casting it was not properly enrolled equated to some 7.94% of the total valid votes cast.) This recount wasn't sought because Mr Harawira thought there was any real chance it would overturn his election night deficit, but rather to ensure that the Electoral Commission was acting in a proper and lawful manner.

After a sample of the disallowed special votes were checked in front of a District Court Judge and scrutineers from both Mr Harawira's and the Kelvin Davis' campaign, all involved accepted that the Commission had acted as the Electoral Act requires (see here, at para. 39). Given that Mr Harawira's legal representative was one Graeme Edgeler, I think we can be pretty much reassured that this conclusion was right.

Which then means that the unequal effect of the existing rules is not due to how they are applied, but rather because of how different social groups respond to them. Simply put, Maori and Pacifica people disproportionately fail to meet the law’s requirement to enroll by polling day, meaning that they effectively are disenfranchised in greater numbers than other New Zealanders.

Now, let me anticipate an objection to my line of argument. It may be said that if you can't get yourself organised enough to be registered as an elector, then you shouldn't have the right to vote, period. In other words, maybe the registration requirement should operate a bit like the old literacy tests imposed in various US States (see here for an example) to ensure that only the "right sort" of people get to vote.

I don't buy that line of argument. For one thing, I strongly suspect that the requirement to register as an elector is a lot more "simple" for those firmly connected to society and its institutions than it is for those on its periphery. And second, if a person is showing the commitment to turn up in person to cast a ballot, then that to me is demonstration enough that they "deserve" to do so. Beyond certain necessary administrative reasons (more on these later), there seems no earthly reason why the failure to fill out a form ought to limit your right to participate in choosing those who will run your country for the next three years.

That being so, it seems to me that there's a couple of changes that we might want to look at making to our electoral laws.

First of all, where a person turns up at the polling place to vote, but their name does not appear on the printed electoral roll, the issuing officer should be required to ask that person if they have applied to enrol as an elector. If the person says no, or is unsure, the issuing officer should then be required to advise them to fill out an enrolment form. This is necessary because, as the Judge who carried out the Te Tai Tokerau recount noted (here, at para. 9):

Based on that experience, I consider it likely that some Maori voters thought that by completing the special vote declaration, they were both being enrolled to vote and voting. I consider it likely that voters on the general roll who made special declaration votes on election day had the same belief. 

Allowing issuing officers to ensure that voters are aware of the need to first apply to enrol as electors and only then cast a special vote would require a law change, as at present they are restricted in what they may say to potential voters.

The second related change would be to allow individuals to both enroll and vote on polling day itself. This is a measure that the Justice and Electoral Committee considered during its inquiry into the 2011 general election. It noted (here, at page 11) that research showed the move would increase enrolment and voter turnout rates, but that:

[The Electoral Commission argued] that it might act as a disincentive to enrolling before election day, and would require more staff and resources on election day. It could also delay the official count, as voters enrolling on election day would need to cast special votes, which are much more time-consuming to process than routine votes, and registrars would need to complete such voters’ enrolment before their special votes could be validated.

I have some sympathy with this concern. After all, elections already are complicated events that that are hard to run and messing with the rules that govern them can have unintended consequences. Look at, for instance, what happened this past election when it was made easier to cast an advance vote! Furthermore, the rate of voter enrolment has slipped slightly (from 95% in 2011 to 93% this election). Perhaps a dilution of the "make sure you enrol early if you want to vote!" message would lead to a further drop off in voter enrolment numbers, which in turn would mean more work for the Commission - which in turn may impact on things like a timely declaration of the election result.

Against that, however, are three points. Since the Commission's advice was provided, the number of advance votes cast has more than doubled, with a corresponding fall in the number of electors casting a ballot on polling day itself. So the fear that allowing unregistered voters to register and vote on polling day will require more staff and resources is questionable. And, of course, on every single one of those advance polling days an unregistered person was completely free to walk up to a polling station, pick up an enrolment form (these were available at the polling place), fill it out, hand it over, then cast a special vote. Would extending this out to one more day really be that big an administrative risk? Finally, early enrolment still would have benefits for voters - it means you don't need to complete a special vote declaration, which is a pain in the backside to do. 

As such, I think that the Justice and Committee’s conclusion on this issue from 2013 ought to be revisited:

We accept the commission’s advice, but believe that we should continue to monitor this issue. In principle, any mechanism that allows these voters to be enfranchised should be encouraged.

Principle should take priority over administrative concerns, especially as those concerns are becoming less pressing as the voting process expands to encompass a wider time period. 

Anyway, that's my first line of thought. I'll get back to you when I've completed my second.