Who governs New Zealand next could be influenced by electoral rules about what happens when a candidate dies during an election campaign Photo: RNZ
Opinion - We should begin by properly acknowledging loss. The death of the Act Party's Port Waikato candidate, Neil Christensen, is a tragedy for his family and friends. Me tangi, kāpā ko te mate i te marama.
However, Christensen died while a candidate for election, so this personal loss also has very public consequences. In particular, the Electoral Act 1993, s 153A is quite clear about what happens when an electorate candidate dies during the campaign.
The election of an MP for that electorate is cancelled (although voters still may cast party votes and these get counted). Then, under the Electoral Act 1993, s 153E, instructions for a by-election in that electorate must then be issued "without delay".
Which means that Port Waikato voters still need to go to the polls by the end of Saturday to cast their party vote, then sometime after the general election process is completed, but before the end of the year, go back to the polls again to elect a local electorate MP.
Andrew Geddis Photo: RNZ / Cole Eastham-Farrelly
In the meantime, of course, all the country's other MPs will have been declared elected. So, how does the required by-election in Port Waikato link with that process?
The law governing the allocation of seats in parliament after the general election is set out in the Electoral Act 1993, ss 191-193. In essence, it requires the Electoral Commission to allocate 120 seats amongst the various parties that cross the representation threshold of either 5 percent of the party vote, or winning an electorate.
The Commission can only allocate less than 120 seats if some independent candidate wins an electorate (something that has not happened in New Zealand under MMP).
Therefore, in early November after all the votes are officially counted, there will be at least (more on this in a minute) 120 MPs with the right to sit in Parliament. One of these MPs will be National's candidate for Port Waikato, Andrew Bayly, who is at 15 on the National Party list. Given current polling, this guarantees him a list seat in Parliament even with the Port Waikato electorate vote being cancelled.
Then, at some point before the end of the year, Port Waikato voters will elect their local electorate MP.
This MP will be "extra" to the 120 seats already allocated by the Electoral Commission after the general election. And one of the candidates at the by-election will be Andrew Bayly, standing for the National Party.
Andrew Bayly Photo: RNZ / Samuel Rillstone
Smarter people than I, such as the NZ Herald's Claire Trevett, say that he will be a lock to win that by-election. At which point he will resign his list seat for National, re-enter Parliament as Port Waikato's electorate MP, while the National Party gets allocated another list seat to make up for the one that it "lost" when he resigned.
In short, the legally required by-election process means National basically is guaranteed getting another seat in Parliament quite shortly after the final results of the general election are announced.
Meaning that the magic number of seats it and Act now need to get between them from the general election in order to avoid having to deal with New Zealand First is 60, rather than 61.
Which, given how tight everyone says the polls are, could literally change who will be our next government.
All of which raises the question, how much sense does this make?
Well, parliaments with more than 120 MPs in them and parties getting more seats than they are "entitled" to can happen in other ways.
If at a general election a party wins more electorate seats than its share of the party vote would give it, they get to keep these "overhang" seats and parliament just gets that much bigger. We've already seen this happen after three elections under MMP. Depending on what happens in the Māori seats - how many of these Te Pāti Māori win relative to their share of the party vote - it might happen this year, too.
However, the underlying rule that when any candidate in an electorate dies the election of an electorate MP must be re-run really is a throwback to pre-MMP days.
Under the old First Past the Post system, winning an electorate was the only route into parliament. And it was the total electorates won by each party that then determined the overall government. So, having a candidate - especially one of the National or Labour candidates - die during the campaign could literally change the nationwide outcome.
Under MMP that just isn't the case.
Let's imagine - and apologies if this sounds ghoulish - that it were Andrew Bayly who passed on and not Neil Christensen, but the election of an electorate MP for Port Waikato carried on anyway. That would mean one less electorate seat for National, and one more electorate seat for some other party. However, when the list seats are allocated by the Electoral Commission, National would receive one more, while the other party would receive one less. The voters of Port Waikato may not get their preferred local MP - assuming they want that to be a National one - but the overall distribution of seats in parliament would remain the same.
As such, it might be time to rethink the rule at play here. Not for this election - it must play out as the law requires. But whether this ought to happen again in future elections really is questionable,
*Andrew Geddis is a professor of law at the University of Otago.
*This story was first published by Pundit
