On Elections

How people elect parliaments

Removal from elected office takes out innocent colleague

A Melbourne City Councilor, one of nine originally elected in last year’s election under the single transferable vote system (STV), has been removed from office after a technical – and highly controversial – ballot recount.

Independent councilor Michael Caiafa, who has sat on the Council since last November, has been thrown off the elected body as an indirect result of a judicial ruling regarding the removal of another councilor, after the latter person was found to be ineligible to be elected.

image - Mlebourne cr Michael Caiafa.jpg

Melbourne City Councillor for the past four months, Michael Caiafa –
ousted by a recount technicality (image: City of Melbourne)

The outcome highlights a peculiarity caused by the ‘sequential elimination’ of candidates during the preferential vote counting process.

City councils such as that governing Melbourne are part of the third tier of Australia’s federal governance structure, below the national parliament and the state parliaments.

Australian local government elections use preferential voting, either for single councilor positions or, in many modern systems, using the STV vote counting method.

With STV voting  a quota is set to win each elected position, and voter preferences eliminate weaker candidates and transfer the ballots in order until the correct number of candidates each hold the same quota of votes. The process chooses a most-preferred set of representatives overall, and ensures that most voters will have effective political representation.

During the counting of preferential elections any slight change in vote numbers, or (as in this case) the late removal of a candidate from the counting process altogether, can lead to a different sequence of preference flows, potentially seeing a different set of candidates winning the available seats.

But such result differences are rare, and this month’s ‘Caiafa incident’ in Melbourne is an unusually clear example of the phenomenon.

Similar result changes can theoretically affect single-winner preferential ballots – widely used in Australia to elect lower houses – although no instance of an ineligibility discovery changing an election result is known. (Australian electoral laws generally require fresh elections to be held if a candidate dies during a single-seat election.)

Single-member preferential voting is also known as the ‘alternative vote’ (in the UK and Canada) and as ‘ranked choice voting’ (in the US). In the US the term ‘ranked choice voting’ is also sometimes used to refer to the STV system.

In a number of Australian jurisdictions that use STV, the risk of alternative preference chain scenarios is exacerbated by the use of ‘group voting tickets’ (GVTs), which involve political parties setting their own preferred order of preference, rather than having each voter specify their personal choice.

GVTs result in increasingly large blocks of votes flowing unexpectedly during the ballot counting process as each less successful candidate is eliminated.

Anticipating this, political parties engage in strategic ‘preference trading’ in advance of such elections.

The results of such transactions are, however, literally impossible to predict for even the party officials – let alone the voters – until the actual ballots are tallied.

Since the Australian Constitution – and some state constitutions – requires that the members of parliament are “chosen by” the electorate, some commentators have speculated that the GVT technique may be unconstitutional.

The national legislative provisions creating the GVT option have, however, previously been tolerated by the nation’s High Court as an acceptable electoral device, so long as voters also continue to have access to the primary option of specifying their own individual preference order between candidates.

In early 2016 Australia’s national parliament legislated to drop the use of the GVT device to elect national senators. Other state and local electoral laws are yet to adopt that change.

In the Melbourne City situation the state’s administrative Tribunal (VCAT) yesterday confirmed an initial ruling made two weeks ago, where it determined that the statutory rules for dealing with ineligible candidates discovered before the election result was declared should be used, instead of a different statutory ‘countback method’ provided for ineligibilities discovered after the election result.

The countback method recounts the ballots supporting only the departing candidate to identify a replacement preferred only by the voters who cast those ballots.

The countback approach preserves the party-political balance of the original election result, and ensures that the positions of all other sitting councilors are unaffected.

This aspect of the Tribunal decision is controversial, since the record clearly shows that the ineligibility problem only came to official notice after the poll declaration. The Tribunal however followed the urging of the state electoral commission, and ruled that the dispute should be addressed ‘as if’ the authorities had known of the defect earlier.

Yesterday’s decision declares that the Tribunal had a statutory discretion to choose between the available rules for addressing the situation. Ironically, the statutory provision giving the Tribunal the claimed discretion happens to be the one that deals with post-election vacancies, and directs the result towards the single-seat countback solution.

The Tribunal also argued that it had selected the more ‘democratic’ election result.

Both the original and the new ballot counts determine a most preferred set of nine candidates from the ballots cast, although this dispute shows that the removal of a single candidate can trigger a different set of winners arising from the same ballots.

The ‘Team Doyle’ party, associated with the City’s business community, won 37% of the vote – and three of the nine general seats – at the October 2016 election. Over 72,000 voters cast ballots.

Under the system used the separately elected Lord Mayor ticket (including a Deputy Lord Mayor nominee) receives the final two votes on the city council, distorting the partisan balance of the assembly. Sitting Lord Mayor Robert Doyle’s ticket won 46% of the first preference votes and won the two mayoral positions.

The council elections therefore originally saw the Lord Mayor’s party secure a five-seat minority on the 11-member council. But after the Tribunal ruling it will now have six seats, giving the party an outright majority.

But looking at the election result figures, it is hard to claim – as the Tribunal did – that the replacement set of winners ordered by the Tribunal is the more democratically representative group.

Under the original declared set of nine candidates, parties that won an aggregate 81.6% of the vote achieved at least one seat on the council. (STV elections frequently see over 80% of participating voters represented, whereas in single-member division electoral systems the result generally ranges from the low 40%s to the mid 50%s).

Under the new calculation, that first-choice representation figure drops to 73.8%.

During the ballot count independent candidate Stephen Mayne, who started the count in individual 5th place and was the first choice by 5.0% of voters, was overtaken by other candidates (largely due to the GVT-driven preference flows), falling to 10th position and missing out on a council seat.

Under the new result another 7.8% of voters who preferred the ousted candidate Michael Caiafa (originally in individual 4th place, but now also defeated by GVT preference flows) as their representative will also be unrepresented on the council.

Candidates failing to secure a seat even though they started from one of the initial nine highest places is not in itself unusual. The preferential system is designed to give supporters of the initially less successful candidates a fair opportunity to aggregate their votes and be represented in the final make-up of an elected body.

But such a significantly reduced aggregate representation of voters by their most-preferred representatives undermines the Tribunal’s belief that it has selected the most democratic result, and is a clear sign that the details of the vote counting rules (or the Tribunal’s interpretation of them) need to be reviewed.

The ousted Councilor Caiafa has the option to appeal to the state Supreme Court, possibly arguing that the Tribunal chose the wrong statutory rule to apply to the situation.

But the wider policy issue for the Victorian Parliament is whether to abolish the GVT technique, which is used in Victoria not only for the Melbourne City Council elections but also for elections for the state’s upper house, the Legislative Council.

The next state parliament elections will be held in October 2018.

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