Bryce Edwards: Losing confidence in the integrity of NZ elections

Do you believe New Zealand runs its general elections fairly and competently?

As a voter, can you be confident that the votes on your ballot will be counted towards the final result?

As a political scientist, I’ve been asked these questions many times and always answered “yes”, with very few caveats. I’ve even written a chapter for global anti-corruption watchdog Transparency International about how trustworthy the New Zealand election administration is.

Yet, this week, I’ve realised that my high faith in the Electoral Commission is misplaced. This is because the Auditor General concluded their investigation into the Electoral Commission’s administration of last year’s election, publishing a rather scathing report about votes not being counted, people getting away with double-voting, a whole ballot box being lost, and administrators generally being in chaos during the three weeks following the election when they were supposed to be assuring the quality of the vote.

The Auditor-General’s 64-page report is here: General Election 2023: Independent Review of Counting Errors

What the report says

No one could read the Auditor-General’s report and not have their confidence dented in New Zealand elections. Several disturbing cases of incompetency and dysfunction were uncovered in terms of the counting of the votes:

• A ballot box was misplaced in one East Coast electorate, and its 620 votes were not recorded in the final election result
• There were multiple cases of double voting – where people deliberately voted more than once, or their votes were mistakenly counted twice
• The Electoral Commission’s quality assurance processes for checking the vote count were found to be “ineffective” and “improperly completed”

In general, the vote counting wasn’t robust enough, and proper oversight and checks were lacking to ensure fraud and human errors didn’t enter into the crucial role of determining the result.

This is a real shame because it means that the public can’t have total faith in the electoral process. The legitimacy and authority of elections really do depend on that public confidence.

This can have plenty of flow-on effects. In other countries, when the public loses faith in election administration, they often lose faith in politics and government in general. This is why Auditor General John Ryan has said that it is essential that voters have confidence and trust in the integrity of not just the final results but the whole election administration.

Therefore, the Auditor-General’s report must be properly considered, not buried or waved aside as an aberration. Nor can there be any complacency in authorities dealing with the problems with some simple technical fixes. It’s bigger than that.

Some have called for the Chief Electoral Officer Karl Le Quesne to resign. While the buck does have to stop with him, it’s evident that the 2023 problems were significantly bigger than one individual. They relate to his agency being underfunded, lacking oversight, and dealing with the unilateral electoral law changes the last government made without proper consideration of the outcomes.

It is now apparent that there are plenty of problems in how the Electoral Commission runs elections, which need significant attention. As the Auditor-General points out, if these aren’t fixed, then “our election processes will remain vulnerable to the kinds of human error that occurred in the 2023 General Election”.

The new Minister of Justice, Paul Goldsmith, says he’s quite concerned” with the errors, which were “pretty basic stuff”.

How the Electoral Commission tarnished the integrity of elections

A big part of the miscount of the 2023 election results was due to data entry problems. Karl Le Quesne explained this to Newstalk’s Heather Du Plessis-Allan yesterday: “What we found was [staff] transposed some of the results from a paper sheet where they recorded it into our system, and they didn’t go and do a double check to make sure they didn’t enter the data correctly… So it wasn’t counting correctly, most of it was data entry” – see Newstalk’s Election 2023 counting errors – what went wrong? (paywalled)

Essentially, there needed to be more clarity about who was doing what. The Wellington head office of the Electoral Commission mistakenly thought that local electoral managers throughout New Zealand were doing the necessary quality checks on the counting of the votes, but those local managers thought it was in Wellington that the checks were being carried out.

Hence, some checks didn’t occur. But even if they had been, the Auditor-General says the checks were inadequate: “Even if the quality assurance processes had been carried out, the processes themselves were not effective.”

This was especially a problem when dealing with instances of double voting, which are usually removed before the final count is produced. This didn’t happen in 2023, with 892 “apparent dual votes” making it into the final count.

Unfortunately, the Electoral Commission left resolving the double voting until the last night before the final count was due. According to the Auditor-General’s report, an instruction was sent from the Electoral Commission head office to the electorate managers at 5.22pm directing staff to remove any dual votes “based on the best information they had at that time”. But this was not “universally implemented” – see Thomas Coughlan’s Judges and minister briefed after instances of double voting found in election result

The potential impact of those votes has been covered well by the Spinoff’s Alice Neville: “In one unnamed electorate where, even after judicial recount, there was a small margin between the leading and second candidate, ‘up to 60 apparent dual votes might not have been removed’. The Commission further whittled this down to ‘at most, 24’ dual votes that may have impacted the candidate vote in this particular electorate. Twenty-four may not sound like a lot, but this news is probably not particularly comforting for the likes of National’s Melissa Lee and Cameron Blair, who lost Mt Albert and Nelson to Labour’s Helen White and Rachel Boyack by a mere 18 and 26 votes respectively, or Labour’s Peeni Henare, who lost Tāmaki Makaurau to Te Pāti Māori’s Takutai Tarsh Kemp by 42 votes” – see: Six telling tidbits from the review of vote-counting errors at the 2023 election

The problem of allowing voters to enrol on election day in 2023

Much of the problems in counting the votes in 2023 came down to the unprecedented number of special votes that needed to be processed after polling day—602,000. This was because there were a record number of late enrolments—454,000 in the last two weeks before polling day and 110,000 enrolments on polling day itself.

The ability to enrol to vote on election day had been brought in for the earlier 2020 election, but this hadn’t been much utilised – probably because that election had been delayed a couple of months, giving people extra time to get enrolled before early voting even started. This wasn’t factored in for 2023, and the Electoral Commission thought the same early enrolment pattern of 2020 would be repeated in 2023.

Therefore, the Commission didn’t hire enough temporary staff to process the late enrolments and vote counting. Election-day enrolments and special votes are particularly complicated and take about ten times longer to process than normal votes.

This meant the three weeks allocated to the Electoral Commission to go through the vote-counting process wasn’t enough. There was extreme pressure to get it done in this timeframe, and this meant that the final checking procedures, which normally take two days, were allocated to the few hours in the morning just before the results had to be declared. Corners were cut under the circumstances – see Katie Scotcher’s RNZ report, Official 2023 election result final check done in a few hours, under extreme pressure

Underfunding by government

Part of the problem, according to the Electoral Commission, was that it didn’t have the Budget to carry out the processes differently. Although the Commission had requested a budget of $158.6m over four years, only $75.6m was allocated – less than half what the electoral authorities believed they needed.

Difficult trade-off decisions had to be made with the budget. For instance, the Auditor-General’s investigation found that two of the Commission’s three IT systems were already at the “end of life and… difficult and expensive to maintain”. Related to this, on election day, staff found that their computer systems malfunctioned twice, meaning they couldn’t check voter details.

The Commission also had problems retaining staff, and the high staff turnover meant many inexperienced election administrators were in charge of the 2023 operations.

Also, according to Labour leader Chris Hipkins, the Commission “completely failed in their obligation to make sure the electoral roll was up-to-date before the election”, and this led to much of the voter verification problems – see Thomas Coughlan’s Government keen on electoral law changes, Chris Hipkins blames Electoral Commission for enrolments debacle

Should election day enrolment be abolished?

Much of the Electoral Commission’s 2023 problems stem from the Labour-led Government’s decision to allow voters to enrol to vote as late as election day. Historically, voters have had to enrol earlier or miss out.

The change was brought in with then Justice Minister Andrew Little arguing that about 19,000 voters had been “disenfranchised” in 2017. Officials warned that the proposed change would mean more work for the Electoral Commission. As a result, the Commission was allowed three weeks, instead of two, to come up with the final count after election day.

The new Justice Minister Paul Goldsmith has suggested that the country might be best to return to closing off the electoral roll on the Friday night before polling day. He argues that election administration has become too complicated and cumbersome and that allowing voting-day enrolment is uncommon internationally.

National’s coalition partners Act and NZ First appear to agree with such a change. Act leader David Seymour has spoken out strongly in favour of reverting: “Frankly, I think if you can’t be bothered enrolling a couple of weeks before polling day, you’d have to ask, you know, how much are you thinking about voting? Citizens do actually have duties. If you want the benefits of living in a democracy I reckon enrolling on the electoral roll two weeks before mightn’t be a bad thing” – see The Post’s ‘Citizens do actually have duties’: Government considers rolling back election day enrolments (paywalled)

Self-interested wars over voter enrolment

Labour and the Greens will strongly oppose any moves to change enrolment rules. Already, Hipkins has framed this suggested change as “taking away the right of thousands of people to vote,” suggesting the elections will be less legitimate because under National, “thousands of people won’t have their vote counted.”

The response from the Greens has been even more robust, with Chloe Swarbrick saying yesterday that it hinted at “a frightening disdain for democracy and people’s right to have their say. It smacks of the politics of Trump’s America… Accessible elections are critical to a functional, inclusive democracy. Any imposed barrier is rightfully open to serious criticism of voter suppression. We’ve seen similar measures disproportionately harm marginalised communities in the likes of the United States”.

Blogger and Greens supporter No Right Turn has backed this up, arguing that National is planning to disenfranchise voters, especially renters, for “naked partisan reasons” – see: National hates democracy

Something of a US-style culture war threatens to erupt about voting rights. This is because both sides of politics have a vested interest in setting the rules. The reality is that those who enrol late have a strong tendency to vote for the parties of the left.

This has been explained by RNZ: “Special votes typically favour Labour and the Greens, who commonly pick up seats in the final results compared to what was counted on the night, at the expense of National. For example, in 2023 the Greens picked up one extra seat and Te Pāti Māori two, while National lost two. In 2020, Labour and Te Pāti Māori each picked up an extra seat, while National lost two” – see: Government considers removing election day voter enrolment

For this reason, electoral law expert Andrew Geddis has suggested that politicians follow their own self-interest in deciding when enrolments should close. Essentially, Labour changed the closure date in 2019 to be as late as possible, to benefit its own side, and now National, Act and NZ First want to change it back to advantage the political right – see Newstalk’s Proposed electoral law changes could benefit right-leaning Governments, expert claims

This leaves electoral politics in a bind – a zero-sum game in which one side battles for its own advantage, with little concern for consultation, consensus or even bipartisan agreements over electoral systems.

It didn’t used to be this way. But when the Labour-led Government introduced electoral changes such as election-day enrolment, they did so without consulting with opposition parties, which National criticised as breaking traditions. Now, the national-led government feels entitled to do the same, saying it is now unbounded by such constitutional niceties.

The lesson is that this happens if you let the government of the day change the electoral rules without broader debate and consensus. Ultimately, the government of the day rightfully has the prerogative to change the electoral laws, but given the breakdown of Parliamentary consultation on this process, National, Act and NZ First would be wise to consult widely with society before getting rid of election-day enrolment.

Dr Bryce Edwards is Political Analyst in Residence, Director of the Democracy Project, School of Government, Victoria University of Wellington.