New Senate voting rules go to court
After two years of consideration, in March 2016 the Australian Parliament altered the law relating to how Australian senators will in future be elected.
The single transferable vote system, which allows voters a wide range of choice and equal influence on the outcomes, has remained in place. But the details of the ballot paper design and the system of marking preferences between candidates have been freed up significantly.
Voters will no longer have their vote invalidated for failing to artificially rank every single candidate. The ballot will only require voters to rank a minimum of six candidate preferences (although the ballot paper instructions will encourage them to rank at least twelve).
Perhaps most significantly, the alternative system by which voters could delegate their whole vote to a political party’s voting ticket has been abolished.
The former party ticket device had been the subject of sustained criticism for allowing party strategists to game the system, leading to preference flows that bore no relation to voter intent.
Several senators elected since the system was adopted in 1983 have won seats solely through the voting ticket device. The unpredictability of the system had meant that such results were almost random in nature.
In place of the party ticket device, an option allowing voters to fill their candidate rankings by party column will be available. The voters will need to select the number and order of party columns themselves, although within each column the candidate order nominated by parties will apply.
Both of the new ballot paper options give voters greater choice than the previous design.
The debate both inside and outside Parliament on the ‘optional preferencing’ amendments has largely been based on predictions of the political outcome of the new system at the next election. With the share of voters supporting candidates other than the major parties rising at each recent election, such electoral predictions have become increasingly difficult.
Current Senator Bob Day, of the Christian-themed Family First party, is one of at least four current senators who were elected at least in part due to the impact of the ticket voting system.
Senator Day has challenged the validity of the recent amendment to the law in the High Court. His challenge is based on claims that the new legislation offends against constitutional principles invalidating laws that undermine the status of members of Parliament as being ‘directly chosen by the people’.
The Court’s Chief Justice heard initial arguments on Thursday 24 March. The judge and the competing lawyers all agreed that it was desirable to expedite the hearing of the case in advance of a possible mid-year election.
Despite the new ballot design clearly giving voters more choice, Senator Day argues that voters should continue to have the option to delegate their choice to political parties.
The Court will need to determine whether Parliament is precluded from passing legislation that establishes the more direct and optional form of choice.
To accept Day’s proposal about party voting tickets, the Court will also need to conclude that Parliament now has no power to repeal the vote delegation device that it established in 1983.
Day also argues that ballots which ‘exhaust’ under optional preferential voting (when all the voter’s marked preferences have been used and the rest of the candidate boxes are left blank) means that some voters are being excluded from the ballot.
To accept this point the Court will need to overlook the current law that provides that when a voter has failed to rank 90% of the candidates the entire ballot paper is invalid, completely disenfranchising the voter.
The Court would need to accept an odd argument that voters would be disenfranchised even though the new system, in contrast to the old, clearly accepts their ballot and uses their stated preferences.
In the initial hearing the Chief Justice indicated that – assuming he accepts that the challenge has enough merit to be considered – the litigants should submit written arguments by mid-April, with a possible hearing by the full court in the first week of May.
On Elections 