Most people exist, that is all

I think we've found the way to make electoral law interesting to people. Get some sports stars to break it.

News that the Electoral Commission has reported some of NZ's sports royalty to the police for sending out election day tweets encouraging their followers to support John Key's reelection has gripped the media. Well, it would, wouldn't it? I mean, it involves sports stars. Two of whom are (or were) All Blacks. This officially makes it Very Important Stuff That Needs Lots Of Attention.

(Oh, yeah. Some other people got reported, too. Twenty-three in all. But they are just ordinary people. Yawn.)

So, as it involves sports stars who are All Blacks, I'm sure you are desperate to know just what is going on. Why is sending a tweet on election day something that might bring the police knocking on your door? Much less something that could get you fined $20,000?

New Zealand's leading commentary on electoral law addresses the background to this issue in a typically insightful and authoritive manner:

Running alongside the instrumental objective of preventing direct interference with the polling process are a set of “ritual and aesthetic” considerations.[1] That is to say, the legal rules regulating polling not only seek to curb the possibility of partisan manipulation of the final outcome, but also work to shape the very way in which individuals are expected to approach the act of voting. This aim is particularly clear with respect to the regulation of general polling day behaviour, ... . By banning public processions or demonstrations on polling day, as well as requiring the removal of all campaign material from public view on polling day, the law has stripped the occasion of much of the pageantry and ceremony once associated with it. The law instead requires that individual voters make their way quietly and soberly to the polling place, take their ballot to the solitude of the voting booth, and make their final choice according to the private dictates of their conscience. The parallel between this social practice and forms of religious observance is not hard to see. Even the very expression “the sanctity of the polling place” is redolent with a quasi-spiritual meaning, invoking the notion that the casting of a vote “may be a whisper, but it is whispered to the gods”.[2]

It then continues to address the actual legal provisions at issue:

In addition to prohibiting any active campaigning on polling day, the law also requires the removal of existing campaign materials from public sight by midnight of the day preceding polling day. Thus, it is an offence to continue to exhibit in view of a public place (as well as to publish, distribute or broadcast) on the day of the election:

  • a statement intended or likely to influence an elector as to who to vote (or not to vote) for;
  • a statement intended or likely to influence an elector to abstain from voting;
  • a party name, emblem, slogan or logo; or
  • any ribbons, streamers, rosettes or similar items in the party’s colours.

It's this first bullet point (or, the Electoral Act 1993, s.197(1)(g)(i)) that our sports star tweeters look to have fallen afoul of. The law makes no distinction between publishing via old school methods or newfangled social media; so long as you "bring [something] to the notice of a person in any manner", then you meet the definition. And it also doesn't matter whether people have signed up to hear your thoughts on who best to vote for (by, say, following you on Twitter) - if you send these out on election day before the polls close, you commit an offence.

Two quick points on this, before I run off to pick up the kids from school. The first one is whether the regulatory approach we have at the moment - relatively open slather up until midnight of the day before polling day, then very restricted until the polls close - still makes sense when some 700,000 votes (nearly a quarter of the total) were cast before polling day. Is "election day" actually all that special any more?

The second is that even if we want to keep with our tradition of a peaceful, campaign-free polling day, does extending that approach to social media make sense? After all, Twitter/Facebook/Instababble - what, you haven't heard of Instababble? Get on it now! - all work on a "if I think it, I'm sayin' it" principle. Those "thoughts" then go to networks of people who have positively chosen to hear/share in them. The idea that there should be, even for a day, a filter put on the process is contrary to the entire ethos of the practice.

So why bother? What harm is there if the Twits all tweet at each other all election day long? Which values or principles are put at risk by letting them do so? And is it worth using the law - and the threat of a conviction and $20,000 fine - to counter it?

Anyway, I suspect these are issues that Parliament's Justice and Electoral Committee will be very interested in talking about (and hearing from people on) as part of their post-election inquiry. Who knows - they may even set up a Twitter account so that people can let them know what they think!

Right - got to get those kids.


[1] G Orr, “The Ritual and Aesthetic in Electoral Law” (2004) 32 Federal LR 425.

[2] Ibid, p 436.