The Government is considering lowering the MMP threshold to 4 percent, but some say it will make no material difference. If the justice minister is going to change MMP some say he should go big, or go home, writes Laura Walters.

Justice Minister Andrew Little is considering changing the share of votes needed by a party to get into Parliament from the current 5 percent. He also floated the idea of getting rid of the coat-tailing provision in order to make the system “fairer”.

Coat-tailing allows parties who win an electorate seat the ability to bring in extra MPs, despite not reaching the 5 percent threshold. It’s seen by some – including Little – as an unfair part of the law, but somewhat necessary for smaller parties given the high threshold.

The Electoral Commission suggested the changes under the former government in 2012 but nothing was done.

If there were to be changes, the decision would be made in a referendum, and possibly grouped in with a referendum on euthanasia, and the Greens’ cannabis referendum.

Little said ministers were currently consulting on the cannabis referendum, but David Seymour’s euthanasia bill and electoral law reform had come up incidentally, so it was prudent to consider all three issues.

Little said the electoral reform issues had come up repeatedly since 1986, and it was clear the issue wasn’t going away.

The current situation wasn’t fair and wasn’t what MMP should be about, he said.

“I think there’s some unfairness in the situation when you’re a party that gets one seat and 3 percent of the vote you can get a swag of MPs; you’re a party that just misses out on 5 percent and you get nothing.”

Little said no final decision had been made but referendum timing, topics, and whether the results would be binding would be considered by Cabinet, with a decision expected by the end of the year.

However, there are mixed feelings about how much of a difference the proposed changes would make, and whether the decision on electoral law should be made by the Government or the public.

Is 5 percent too high?

TOP leadership contender Geoff Simmons said the threshold needed to be lowered.

Last year’s election saw the new party gain 2.4 percent of the vote, but Simmons said he believed the party would have had more success if people weren’t scared off by the 5 percent threshold.

Internal polling had the party at 7 percent in the lead-up to election but the fear of the party not making it over 5 percent meant people did not want to “waste their vote”.

The high threshold made it hard for new parties to form and get into power, especially with the near-duopoly of Labour and National.

Wellington constitutional lawyer Graeme Edgeler said there was merit to Simmons’ point.

But he advocated for a lower threshold, citing 2.5 percent as a reasonable new limit.

If the threshold was 2.5 percent, TOP would have almost certainly have made it into Parliament.

A significantly lower threshold would also do away with the need for the coat tailing provision because small parties would be able to bring in more candidates.

Edgeler said there was a significant difference to the impact a party could make when it had three MPs as opposed to one.

National leader Simon Bridges told TVNZ the proposal to lower the threshold to 4 percent was “tinkering”.

National considered lowering the threshold in government but decided to stick with 5 percent, he said, adding that if the Government wanted to make a change it should have “the courage of your convictions” to make a significant difference.

He also told TVNZ he believed the move was spurred on by the minor parties, like the Greens and New Zealand First, who were worried about their status.

Last election, 2.6 million people cast party votes, and more than 120,000 of those went to parties that did not win representation.

As the population grows, if the threshold remains at 5 percent, there could be a lot of people who essentially cast ‘wasted votes’.

Referendum or executive decision?

Simmons said he did not believe a referendum was necessary to change the law. There had already been an expert advisory group who looked at the system – based on provisions in the current law – and suggested changes.

“What’s Government for if they’re going to come to check every decision with the public,” he said.

The Green Party agreed, saying there was no need to put the decision to a referendum.

However, Edgeler argued MPs had vested interests in the law, so it should be up to the New Zealand public to decide.

There was also the issue that if Labour wanted to change the law, it needed New Zealand First’s support, as National has said it would not support the changes.

New Zealand First has long held the position that any issues of conscience or constitution should be put to a referendum, as parties don’t campaign on these issues, and therefore do not have a mandate to make the changes.

So, if the Government wanted to make the changes (and get New Zealand First support) it needed to put the question to the people.

If a party campaigned on changing the threshold and was elected, that would be a different story, he said.

But first it needed to pass the legislation to decide to have a referendum. There would also need to be a decision of whether to make the results binding, and how to word the questions.

When to ask the question

There are also different opinions on when to put the issue to the people.

While holding referenda at the same time as a general election would ensure higher turnout, the Electoral Commission has advised against it.

Edgeler said there was a threat of either the referendum topic dominating the election, or of the topic getting buried.

Holding referenda outside an election may mean lower voter turnout, but it could help people to focus on the issues, and have a better understanding what they were being asked. It was expected the cannabis referendum would be carried out via postal ballot, and if the other two topics were added, all three topics would be decided via postal ballot.

Lumping three topics together meant questions would need to be clearly articulated, rather than having “yes” or “no” answers, Edgeler said. People needed to know exactly what they were voting for.

Little said decisions on what to include in a referendum and the timing would be made by Cabinet by the end of the year. However, any changes to the threshold would not come into effect until 2023.

Wider electoral law changes

The issue comes after Little announced he would change the law for the 2020 election to allow voters to register and vote on election day. Currently, votes cast by those who register on election day do not count.

The Electoral Commission has also asked the Government to consider changing the rules around what happens when someone votes early but dies before Election Day.

At the moment, if someone registers an early vote but dies before Election Day, that vote does not count.

Little said he did not intend to consider changing this part of the law.

On prisoner voting, the Green Party has encouraged the Government to change the law to allow prisoners to vote, but Little said it was not currently a priority.

Meanwhile, the courts recently upheld a landmark decision in which the High Court made a declaration that stopping prisoners from voting was a breach of their human rights.

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