Electoral law litigation likely to rise

Published in the National Busines Review of 15 August 2008

The Electoral Finance Act under an MMP system is likely to lead to much more action in the courts after the election than in previous elections, electoral law expert Hayden Wilson of legal firm Kensington Swan predicts.

"The result of the election could even turn on the decisions of the Electoral Court if there were litigation arising out of the results in certain critical seats," he said

Electoral petitions in previous elections have not affected the overall outcome of an election, as the impact had been confined to just one electorate seat in each case. That changes under MMP.

"The most obvious example is Tauranga. If New Zealand First gets three or four percent of the party vote nationwide, but Winston Peters doesn't win back Tauranga, he'd have all the incentive in the world to litigate the result," Mr Wilson says.

"And if he were to get an election result overturned, he'd bring back a group of MPs which would change the whole make up of Parliament, and potentially who forms the government."

The same logic applies to the outcome of Epsom (with ACT's Rodney Hide), Ohariu (with United Future's Peter Dunne) and even to Wigram (with the Progressives' Jim Anderton), although the number of MPs involved would be much smaller on current polling.

Mr Wilson said the Electoral Finance Act was having a chilling effect on campaigning.

"We've seen an increase in the number of people asking whether some action or statement they wish to make would be permitted or not under the act.

National's Wellington Central candidate, former ACT MP and lawyer, Stephen Franks agrees that the Electoral Finance Act is depriving voters of important information about the candidates.

Voters aren't seeing a lot of the normal activities expected four months out from an election, he said.

"Normally we would have seen the CV type brochure introducing the candidate from all the parties by now, and we haven't."

Labour's candidate Grant Robertson did deliver just such a brochure to households at the end of last year, just before the Electoral Finance Act took effect.

Mr Franks expected candidates would do more face to face meetings because they don't count against the candidates spending cap, but signage and mailouts were a different matter.

"I was looking to have an electorate office with the usual 2.4m x 1.2m sign. The Electoral Commission wrote to candidates saying that signs like that were a campaign expense, and the Commission assessed the value of standard sign at $6 per sqm which was over $17 a day.

"Including construction and removal that came to about $4 600 for a four month campaign. That was almost a quarter of the campaign allowance for just one sign."

"Alternatively with the campaign spending limit at $20 0000, I could have sent one postcard to about two thirds of the electorate," he said.