ACT: How the Northland By-election Could End in Court

There has never before been a situation where a list MP has won a by-election, and thus become a constituency MP. The Electoral Act is not clear on what happens in this situation. ? The courts may have to interpret electoral law in an unprecedented situation.? We could expect a legal challenge.? Ironically, if Rt Hon. Winston Peters did win in Northland, the M?ori Party and United Future are likely to have a substantial increase in political leverage.? Who knows what is going through the minds of voters, but our guess is that most who might be considering voting for Peters are not intending to increase the power of the M?ori Party. ?To understand this, we need to consider some possible outcomes.

Scenario 1: National Wins (Nat 60 ACT 1 =61/121)
National winning is still the most likely scenario.? It is predicted at 55 per cent by iPredict. Betting markets draw on deeper insights than polls taken before the National candidate was known.? National is mobilising formidable resources for the by-election, but the voters have to like the candidate.

Scenario 2: ACT Wins (Nat 59 ACT 2 =61/121)
National?s candidate is not exactly a young John F Kennedy.? We hope we are wrong and that the candidate?s steady improvement throughout the debate on TV3?s?The Nation?is indicative.? Perhaps the Prime Minister will have to endorse Robin Grieve, an experienced campaigner, as the only candidate who can save the right. ?Stranger things have happened.

Scenario 3: Labour Wins (Nat 59 ACT 1 UF 1 Mao 2 =63/121)
Willow-Jean Prime is competent and knows how to deliver a political message.? Very long odds, but David Seymour, who went to primary school in Whangarei, would love to hear that Northland accent in parliament, Mishta Schpeaker. ?This scenario means National require either the Maori Party, or both United Future and ACT, to pass legislation ? a big win for the Maori Party and UF.

Scenario 4: Peters resigns before election day and wins (Nat 59 ACT 1 UF 1 Mao 2 =63/121)
Under this scenario the Speaker must declare a vacancy and whomever is next on the NZ First list gets the strangest 2? years of their life.? Peters? return to parliament depends entirely on Northland.? Again National will need the Maori Party, or both UF and ACT to pass legislation.? The Prime Minister might eventually have to consider a snap election, as sensible policy change is blocked.? This is the best outcome by far for the opposition, and gives Peters a dilemma:? If he thinks he?s going to win, he should resign now to maximise the gains.? If not, he should withdraw and give Prime a clear run for the same outcome.

Scenario 5: Peters resigns before election day and loses (Nat 60 ACT 1 =61/121)
Peters is out of parliament, replaced by whoever is next on the list. ?The NZ First caucus star in a reality TV series, Game of Crones. ?National can get on with policy reform, with ACT support.

Scenario 6: Peters wins on election night and resigns before return of the writ
This scenario is more interesting. ?Peters could resign after the election result is clear, but before the return of the writ, forcing the speaker to declare a vacancy.? Not doing so would be a big call for the speaker. At this point he would not be legally elected for Northland and his resignation would be only as a list MP.? How would the electoral commission respond? ?There are two sub scenarios:

Scenario 6a: (Nat 59 ACT 1, UF 1, Mao 2 =63/121)
The Commission mechanically replaces Peters with the next NZF list MP, then appoints Peters the MP for Northland upon the return of the writ.? The outcome would be the same as scenario 4.? This would change the proportionality of Parliament, which is supposed to be set by the party vote at the general election, but the Electoral Act says nothing about the proportionality needing to be maintained in such situations, and there are good reasons for this on a practical basis (especially for Parties that had less than 5% at the previous election).? In this scenario retiring list MPs are replaced off their party list.

Scenario 6b: (Nat 59 ACT 1 UF 1 =61/120)
But the Commission might decide to hold over the appointment of a new NZF MP until return of the writ, when one is entering anyway. ?The size of the NZF caucus does not change. ?Thus Parliament would have 120 members. This scenario would likely also end up in court (remember how Peters won Hunua).? Now National would need the support of ACT and UF, or just the Maori Party, to govern.? That would be the end of substantive RMA reform.

Scenario 7: Peters loses and resigns after return of the writ
Peters is out of parliament and replaced by another list MP.? Game of Crones without a leader ? comedy central.? Highly unlikely but who knows, maybe a loss in the by-election will put Peters off politics?

The Take Out
A Peters victory in Northland could lead to a court case, and will empower the Maori Party and, to a lesser extent, Peter Dunne.

The pivotal question is if a current list MP can run for an electorate seat without first resigning? ?If it seems messy, it is. ?Because by resigning Winston’s hairdresser is next-up and?Southland gets a list MP for NZ First.

If Winston then loses Northland, can he un-resign? ?I don’t think so.

MMP never anticipated the never-ending permutations, not the creativity of politicians and wannabes.


– The Letter, ACT