Hone's last stand

Hone Harawira is seeking judicial recount of votes that he doesn't think will change the result in Te Tai Tokerau, and which won't be able to look at the problems he claims existed with voting in that seat. This seems ... misguided.

There's one thing that even Hone Harawira agrees will not change following his sought after judicial recount of the vote in Te Tai Tokerau - the outcome of the election in that seat. Kelvin Davis' majority after the official recount and special votes is some 739 votes, and I'll go on record with an absolute, rock solid prediction that there is no way that the officials have stuffed up the count by that much. Kelvin Davis has won, and the recount isn't going to alter that.

And, as I say, Mr Harawira seems to think so as well. Instead, he's claiming that the purpose of the recount is to make sure that the voting process in Te Tai Tokerau was "fair", pointing to alleged flaws in the way it worked:

Opening polling booths without Maori roll voting papers, I'm talking about people not being offered assistance to vote, Maori people getting sent from Whangarei to Wellsford to vote, Maori people getting turned away because they didn't have their EasyVote card, Maori people having their identity questioned because of their different name, Maori people being treated like they just don't deserve to be in the polling booth.

On Newstalk ZB he apparently was even more blunt, as they report him thus:

Mr Harawira has accused the Electoral Commission of racism, and today says he's heard of Maori voters being turned away from polling booths because they didn't have their Easy Vote card, or being told they couldn't cast a special vote.

He claims in some instances, Maori voters were told to wait while Pakeha voters were served first.

I wasn't in the North, so obviously I can't pass definitive judgment on these claims. And I also can't be certain that every single one of the multitude of polling places in Te Tai Tokerau (seriously - multitude - look how many there were in 2011) followed every single procedure exactly right in every case. But I would be absolutely gobsmacked if there's anything like the sort of widespread malpractice - let alone racially motivated malpractice - that Harawira alleges.

Take one example: the claim that Maori voters were turned away simply because they didn't have their Easy Vote cards (which are not needed to vote - they just make the voting process a bit quicker and easier). This isn't just an allegation of procedural impropriety. It's potentially the corrupt practice of undue influence through a "fraudulent ... contrivance, imped[ing] or prevent[ing] the free exercise of the franchise of an elector ...". That sort of offending can send you to jail for 2 years, and I simply do not believe that there were polling officials engaging in it.

Equally, the claim that "Maori people [had] their identity questioned because of their different name" ... well, that's the way the process works. Under s.167(2):

An elector who applies to vote must - 

(a) verbally give or verbally confirm his or her name; and

(b) give or confirm any other particulars that may be necessary to find the elector's name on the rolls.

So if someone goes up to an issuing officer and gives the name "Tamiti Ellison" when their name on the printed electoral roll is listed as "Tamiti Te Toru Ellison Rangitakaiwaho" then, yes ... they are going to "have their identity questioned" in the sense that the issuing officer is going to say something along the lines of "is that your real name?" or the like. 

(Note for anyone who has a problem with this - the alternative would be to adopt the approach in most other countries and require people to bring formal photo ID to the polling place. Then you'd have no confusion over names/insulting questions about "who are you really?". But, equally, you'll disenfranchise a whole lot more poor, young Maori people who either don't have such ID or who don't bring it on election day.)

So - yeah, maybe there's some things that need addressing in the North. And maybe greater cultural awareness training of polling place workers might be a part of that. But I stuggle to accept that an Electoral Commission that puts as much time and effort into increasing Maori participation rates as ours does has presided over a "racist" voting process that systemically discriminated against Maori in the ways claimed. If I'm wrong, I'll be wrong. But I want proof better than "Hone says it happened".

Which then brings me to the "show me the proof" question. Because Mr Harawira says that his real reason for seeking the judicial recount is to try and get some attention paid to such problems. The problem then is, it can't do so.

Here's how I discuss judicial recounts in my Electoral Law in New Zealand text:

As far as practicable, judicial recounts are held in the manner of the original count. It is not a public process: only the judge or appointed official, his or her assistants, the returning officer and his or her assistants, and scrutineers appointed by candidates and/or political parties contesting the election may attend. The presiding judge has all the same powers when carrying out the recount as the returning officer at the official count, including the power to allow or disallow special votes, and may confirm or reverse the returning officer’s original decision on any matter related to the vote count. If the judge finds the returning officer’s official count was incorrect, he or she will instruct the Electoral Commission to amend the final declaration of the result of the poll.

Note, then, what the recount process can't be used for. It can't be used to investigate claims that the officials in polling places were wrongly refusing to let people vote, or that they were sending Maori to the back of the line, or that they were being rude in their questioning, or anything else of that nature. All it looks at is the votes that were cast, not how they were cast.

Equally, the judge's powers with respect to special votes are limited. In essence, she or he can look to see if the person who cast the vote was on the Te Tai Tokerau roll,* and if they've filled out the special vote declaration correctly and signed it. She or he can't inquire into issues such as whether people have been wrongly kept off the roll in the first place. 

These sorts of issues instead have to be addressed through an election petition in the High Court ... a process that is a much bigger deal in that it involves three high court judges, lawyers for both the challenger and the winner, and requires a lot of money to pay for it (as well as the costs of the other side if you lose). By comparison, the judicial recount process is comparatively cheap (it'll cost Mr Harawira $1000 to get it) and runs without any input from the person who asks for it.

So here's what I think is happening here. Hone Harawira has some gripes about how voting in the North is carried out - some of which may have some merit, but I doubt things are as anything like as dire as he suggests. He wants to get some publicity for those gripes. In order to do so, he's lodged this recount application not so much because it can do anything about the problems that he alleges, but rather because it will garner media attention. And so here we are, talking about it.


There's one thing that I think the complainants do have a point on. I suspect most of the special votes that were thrown out in Te Tai Tokerau (there are claims that there were up to 1000 of these) were discarded because the person who cast them had not applied to be on the electoral roll before polling day. That's because we have a system that imposes an enrolment deadline the day before polling day. Which seems a bit odd ... why is it that:

(1) If you fill out an enrolment form and hand it to an electoral official up until the end of the day before the election, you can then immediately cast a special vote at one of the advance polling places set up around the country (and your special vote will then be counted); but,

(2) You cannot fill out an enrolment form and hand it to an electoral official on polling day itself, and if you cast a special vote without having filled out that enrolment form, your vote will not be counted.

It doesn't make any sense to me at all.