Australia 2013 - Results thread

[Filuwaúrdjan]

[Hifly]

The WA senate recount, which is due to go on until the 8th November, has not gone as cleanly as expected.

http://www.smh.com.au/federal-politics/political-news/wa-senate-recount-in-turmoil-as-1375-votes-go-missing-20131031-2wjub.html

[Gary J]

There seems to be some discussion in Australia about whether the courts might order a re-run of the whole Western Australian Senate election (all 6 seats) or just the 2 seats which are particularly in dispute.

There is a precedent, more than a century ago when the Senate was elected by the block vote system, where the High Court declared the election of one South Australian Senator void. It left the election of the other two Senators from the state in the half Senate election undisturbed. I do not see why that precedent would not apply, even with the current preferential voting system.

Senators whose election would not have been affected by the recount or the missing ballots should not have to face a re-vote. They have been validly elected and the court of disputed returns (in my totally non expert interpretation of Australian law) does not have power to set aside those undisputed returns.

[Smid]

I think it would have to be a fresh vote across the state, if that is what the court orders, not just those two electorates, mainly because it would be conducted as a fresh by-election. New candidates could nominate, or old ones drop out, so it would be impossible to align the new results with the old. The elected Senators would also likely be up for re-election, too, due to the quotas required. If those final two spots were the only ones declared open, the quota would be a third of the vote, not the one-seventh the others received, and would almost certainly result in one Liberal and one Labor Senator being elected. I could not imagine the Court of Disputed Returns going down that path. In the former precedent, being block voting, or multiple first past the post, the election of the other two would have not been affected by the mistake, and an election for one, rather than three, would not change quota, since the system relies on pluralities. In short, if the Court orders a fresh half-Senate election for WA, it will, I'm sure, need to be state-wide, not simply in the electorates where irregularities have been detected.

[Hifly]

The results of the "Recount" have been declared and The Greens and Sports Party have snatched seats from Labor and PUP. PUP will challenge in court.

[YL]

The results of the "Recount" have been declared and The Greens and Sports Party have snatched seats from Labor and PUP. PUP will challenge in court.

LOL.

In the recount, the Australian Christians were 12 votes ahead of the Shooters & Fishers (as opposed to 14 votes behind before).

[BigSkyBob]

I think it would have to be a fresh vote across the state, if that is what the court orders, not just those two electorates, mainly because it would be conducted as a fresh by-election. New candidates could nominate, or old ones drop out, so it would be impossible to align the new results with the old. The elected Senators would also likely be up for re-election, too, due to the quotas required. If those final two spots were the only ones declared open, the quota would be a third of the vote, not the one-seventh the others received, and would almost certainly result in one Liberal and one Labor Senator being elected.

Is this true? If you seat the folks already duly elected, you can count them as three full, and one full quota respectively. The Liberals could win one of the remaining two seats by taking 64%, or so, of the vote. Otherwise, they would fall short. Labor could conceivably win a second seat.

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What is to stop folks from arguing that it is the composition of the Senate that has not been decided? Sure, the source of doubt is WA, but, then, again, the source of doubt is in only two of the seats in WA. What's the difference that makes a distinction between having the doubt localized to one state, or two specific seats within one state? What we know for certain is every declared winner in the Senate but two were in fact duly elected.  Why not rerun the entire Senate? Presumably, the rules call for the simultaneous election of half the Senate.

What is being argued here is an alleged lesser of two evils that is nevertheless quite evil. The precedent would be horrible: if you don't like the results of the election disappear some key ballots to force a new election.  There has to be a better way than failing to seat duly elected members. How about invalidating the second count, and commencing a third count with the results from the missing precincts from the first count being presumed accurate? Or, a referendum, PUP/Labor or SE/GREEN take your pick?  Or an election between those four candidates for two seats? Or, drawing straws between Shooters and Christians? Or, drawing straws between PUP/SE and LAB/GRN?

[Gary J]

The Australian legislation seems to give the Court of Disputed Returns a very wide discretion. It can declare a candidate elected or not validly elected or that the election is absolutely void.

As I mentioned in an earlier post, there is a precedent that some Senators can be validly elected even though another from the same state in the same election had a void election. I do not see why that precedent is not still valid, just because the electoral system now is different from when the precedent was set.

The court has been given an unusually wide discretion in this area, so it may not consider precedent to be as binding as in most areas of law. However, I do see an argument that the court should not declare the election of all six Senators void when certainly three and arguably four of them were indisputably validly elected by the people of Western Australia.

It really comes down to whether the court of disputed returns thinks it appropriate to take account of the likely political consequences of ordering a two seat re-vote (almost certainly electing 1 Labor and 1 Liberal Senator) compared to a six seat re-vote (my guess at the likely result 3 Liberal, 2 Labor and 1 Green/Palmer United/lucky micro party Senator). Either way the result would be different from that if the previous recount had been perfect.

[Smid]

I think it would have to be a fresh vote across the state, if that is what the court orders, not just those two electorates, mainly because it would be conducted as a fresh by-election. New candidates could nominate, or old ones drop out, so it would be impossible to align the new results with the old. The elected Senators would also likely be up for re-election, too, due to the quotas required. If those final two spots were the only ones declared open, the quota would be a third of the vote, not the one-seventh the others received, and would almost certainly result in one Liberal and one Labor Senator being elected.

Is this true? If you seat the folks already duly elected, you can count them as three full, and one full quota respectively. The Liberals could win one of the remaining two seats by taking 64%, or so, of the vote. Otherwise, they would fall short. Labor could conceivably win a second seat.

The Court could make virtually any ruling it so desires. As this would be the High Court sitting as the Court of Disputed Returns, as per s354(1) of the Commonwealth Electoral Act, there would be nowhere to appeal the decision (our High Court is the highest court, similar to your Supreme Court).

I don't think there is any way that there could be variable quotas for re-polling new results - that the Liberals would require 64% to elect another Senator, while other parties would require a lower threshold. The method of proportional representation used is to provide a quota that would elect precisely the requisite number of candidates and no more and no less.

I could not imagine the Court of Disputed Returns going down that path. In the former precedent, being block voting, or multiple first past the post, the election of the other two would have not been affected by the mistake, and an election for one, rather than three, would not change quota, since the system relies on pluralities. In short, if the Court orders a fresh half-Senate election for WA, it will, I'm sure, need to be state-wide, not simply in the electorates where irregularities have been detected.

What is to stop folks from arguing that it is the composition of the Senate that has not been decided? Sure, the source of doubt is WA, but, then, again, the source of doubt is in only two of the seats in WA. What's the difference that makes a distinction between having the doubt localized to one state, or two specific seats within one state? What we know for certain is every declared winner in the Senate but two were in fact duly elected.  Why not rerun the entire Senate? Presumably, the rules call for the simultaneous election of half the Senate.

What is being argued here is an alleged lesser of two evils that is nevertheless quite evil. The precedent would be horrible: if you don't like the results of the election disappear some key ballots to force a new election.  There has to be a better way than failing to seat duly elected members. How about invalidating the second count, and commencing a third count with the results from the missing precincts from the first count being presumed accurate? Or, a referendum, PUP/Labor or SE/GREEN take your pick?  Or an election between those four candidates for two seats? Or, drawing straws between Shooters and Christians? Or, drawing straws between PUP/SE and LAB/GRN?

Regarding your first paragraph, the distinction between one state, or two seats within one state is that all seats, including the disputed two, are elected from the one ballot paper. There would be no need to re-run the entire Senate, as Senators from South Australia, or Tasmania, or Victoria, or New South Wales, etc, are elected off a separate ballot paper with different candidates and different voters. If your Supreme Court found that there were voting irregularities in Colorado's third congressional district (simply plucking a state and district number at random here), would be no need to run a fresh election for the entire House, or even all House districts within the state - just rectifying the situation in the House District affected would suffice. In this case, in a similar manner to your Senate (indeed, our Senate is modelled on your Senate, including equal representation of states, rather than by population, and that Senate elections are staggered, rather than the whole Senate elected at the one election - our system is often referred to as "Washminster" as it is taking some of the best aspects of the Westminster system and merging them with the best aspects of the Washington/US system), the Senate is effectively a state at-large election, it's just the proportional representation model that differs from yours there. Regardless, there is no need to call a fresh election for the entire Senate, when only one state is affected.

In your second paragraph here, what you propose is a possibility for the Court to determine - using the figures from the first count for missing booths, and the second count for all other booths. The AEC does not have that option under the legislation: it can re-count ballot papers, but it can't take some results and not other results and match them together - although I believe the Court could order it to do so. I don't know if anyone would put that argument to the Court, and I don't know if the Court would make such an order, but I do know that this is not an option for the AEC unless ordered to do so by the Court.

[Smid]

The Australian legislation seems to give the Court of Disputed Returns a very wide discretion. It can declare a candidate elected or not validly elected or that the election is absolutely void.

As I mentioned in an earlier post, there is a precedent that some Senators can be validly elected even though another from the same state in the same election had a void election. I do not see why that precedent is not still valid, just because the electoral system now is different from when the precedent was set.

The court has been given an unusually wide discretion in this area, so it may not consider precedent to be as binding as in most areas of law. However, I do see an argument that the court should not declare the election of all six Senators void when certainly three and arguably four of them were indisputably validly elected by the people of Western Australia.

It really comes down to whether the court of disputed returns thinks it appropriate to take account of the likely political consequences of ordering a two seat re-vote (almost certainly electing 1 Labor and 1 Liberal Senator) compared to a six seat re-vote (my guess at the likely result 3 Liberal, 2 Labor and 1 Green/Palmer United/lucky micro party Senator). Either way the result would be different from that if the previous recount had been perfect.

I'm going to be lazy and quote from Wikipedia here, rather than a relevant legal textbook (article on Sue v Hill):

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I suspect that in this case, because the missing ballots cannot be used to determine the voters' preferences at all - neither first nor subsequent preferences (unless the Court allows the original count to stand for the missing ballots), the Court will reach a conclusion different to the Hill case, in that it will need to declare the whole election invalid.

[YL]

I don't think there is any way that there could be variable quotas for re-polling new results - that the Liberals would require 64% to elect another Senator, while other parties would require a lower threshold. The method of proportional representation used is to provide a quota that would elect precisely the requisite number of candidates and no more and no less.

I'd assume that if a satisfactory way of doing that had been worked out it'd be in use for by-elections in Ireland (and Scottish local government).  What they actually do is an AV by-election, which means the strongest party in the area tends to gain seats which other parties had won in the original election, and the equivalent in this case would be running a 2-seat STV election just for the two disputed seats, which as already mentioned would almost certainly give one seat each to Labor and the Liberals.

Reading Antony Green's blog, he seems to think a full re-run of the election is the most likely.  I wonder whether the Sports Party will be able to get all those preference deals again?

[Smid]

Niki Savva was pushing the "use the second count for everywhere, except where votes are missing, and use the first count for those booths" this morning, noting that between local, state and federal elections, Western Australia will have had four elections in the space of a year (state election, federal election, local elections - turnout of 26% indicating voter fatigue, Senate re-run).

[YL]

From Antony Green's blog:

The AEC have released details of how the missing votes would affect the re-count figures.  On the crucial count, the Shooters & Fishers would gain 18 votes, and the Christians would gain 5.  So that turns a 12 vote Christian lead into a 1 vote (!) Shooters & Fishers lead, and if that were the correct result on that count it would go back to electing Labor/Palmer for the last two seats.

Green thinks this increases the chances of a new election.  I suppose we're effectively in Winchester 1997 territory: the result is so close that it can be affected by the sort of minor errors that happen all the time in election counts but don't normally matter.  (Whether the Western Australian electorate have the same attitude to bad losers that the voters of Winchester did remains to be seen.)

[Smid]

Yeah, just came to post that! The next time I hear someone say their vote doesn't count...!

[Knives]

If they redid the entire state do you think we'd see something like 3 Lib 2 Lab 1 oth?

[Hifly]

Well the most recent poll had Labor down from the election so 1 Labor is still a possibility.

[Smid]

The Electoral Commission itself has lodged a petition with the Court of Disputed Returns, asking the Court to declare the WA Senate election void.

[Smid]

The Kealty Report into the missing ballot papers has just been released


I think this is the pertinent part of the AEC media release:

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[Smid]

Actually, I wish the US would adopt recommendation #4 - and have a national standard/approach to federal elections...

[International Brotherhood of Bernard]

Anyone got a final 2CP map?