After one recount appeal kept Wellington waiting and another led to a controversial outcome, the Government is investigating if the law needs to be overhauled.

Council election recounts have yielded two extra votes across three council races, and now the Government is considering a review of the law that governs them.

In Whakatāne a recount overturned a coin-toss result, in Queenstown it caused a coin-toss run-off and in Kaipara a recount squeezed out an extra vote for the losing candidate but didn’t change the result.

Meanwhile in New Zealand’s third largest city, Wellington, a decision on whether a recount could happen was delivered almost a month after after voters finished casting their ballots. 

“We’ve been asking for a while to have a review of the legislation.”

But it’s the aftermath of a controversial recount in Whakatāne, rather than Wellington’s recount woes, that have spurred the Government to investigate a review of the Local Electoral Act. 

Minister of Local Government Nanaia Mahuta said she has asked officials at the Department of Internal Affairs to look into a review of the Act, which would include examining whether recounts should be required before a coin toss.

“The scope of a review can be quite broad but I’ll await the advice in terms of the analysis about what’s happened during this local body election.”

Mahuta confirmed options to be looked at would include bringing local council races in line with parliamentary elections with regard to recounts and swearing-in ceremonies. 

“That’s how recounts work, they do change when it’s a margin of two or three or one.”

In Parliament new MPs can’t be sworn in until all recounts have finished.  

Dale Ofsoske, whose company Election Services had the vote-counting contract for the Whakatāne election welcomed news that a review could be on the cards. 

“We’ve been asking for a while to have a review of the legislation.”

The longer timeframe for councillors to take their seats wouldn’t matter too much to Warwick Lampp, whose role at makes him the returning officer for Wellington’s election.

“Close is close, as you’ve seen in Whakatāne and in Queenstown. The results have changed, well they do, that’s how recounts work,” Lampp said.

“They do change when it’s a margin of two or three or one.”

A review could look at a number of issues around the conduct of local body elections, Mahuta says. Photo: Lynn Grieveson.

The drive to certify a result was largely driven by councils themselves, he said. 

“The council really should just chill and wait until the recount period is over and they’ve got all their members but they don’t want to do that because everybody wants to get on with it.”

An overturned coin toss

A rule that recount appeals can’t be lodged until after a notice of results is published in a physical newspaper led to an unusual situation for one candidate in Whakatāne. 

With a tied race in the district council seat of Murupara-Galatea a coin had to be tossed in order to declare a winner by Friday October 18. 

By law the losing candidate could only request a recount three days after notice of the election result was published in a newspaper. 

Mahuta says she wants to investigate bringing local body elections more into line with central government ones. Photo: Lynn Grieveson.

With the notice being published the following Tuesday this meant the period for a recount appeal extended through Whakatāne District Council’s scheduled swearing-in ceremony – and Alison Silcock, the loser of the coin toss, made her judicial recount request the day before Hinerangi Goodman was sworn in.

A different interpretation of one vote by the judge ended up adding an extra vote to Silcock’s total, and meant Goodman had to give up the office she’d already taken on.

Mahuta said she wanted to investigate changes that could be made that would give an “absolute assurance” to candidates that once they were confirmed as a councillor they would continue as a councillor.

Wellington recount

The capital’s recount saga demonstrates the extent to which election results can remain up in the air for weeks, even where the candidate cannot justify a recount.

Ofsoske, who does not have the contract for Wellington, said recounts could change vote totals by single digits, that included a Mayoral race in Hamilton last year where the margin in a 33,000-vote mayoral race changed by three after a recount. 

An appeal by former Mayor Justin Lester sought to overturn a 62-vote margin and, more than three weeks after polls closed, a judge ruled a recount couldn’t be justified.

“With STV you do have to be a little more precise.”

The appeal was lodged on October 25, a week after the final election result was declared online.

If Wellington’s election was governed the way central government elections are Andy Foster would not have been sworn in as Mayor and the previous council would have taken on a caretaker role while the recount appeal was making its way through the courts. 

The decisive blow to the recount appeal appears to have been delivered by a 237-page report to the District Court from Lampp that raised questions about the invalid votes that reportedly formed the basis of Lester’s appeal.

In First Past the Post elections informal or invalid votes often form the basis of judicial appeals because a judge can sometimes determine a different intention behind an invalid or informal vote.

During an FPP recount a judge might interpret multiple ticks as substantially a vote for one particular candidate over another.

But in STV the term “informal” or “invalid” votes includes preferences on votes that were already counted but had a broken sequence of numbers. 

Former Wellington Mayor Justin Lester’s appeal for a recount has been denied. Photo: Lynn Grieveson.

Under regulations governing the counting of STV votes candidates must rank their candidates 1 to 9 but can’t break their sequencing, such breaks are called a “breach” and make the preferences after that breach invalid.

For example, if a voter writes “1,2,7,8” on their ballot paper, preference “7” and those after it can’t be counted.

But the preferences before the “7” are still counted. 

This caused confusion in Wellington where Stuff reported 193 “partial informal votes” could have swung the election Lester’s way.

Under Single Transferable Vote regulations those “partial informal votes” included votes that had already been counted for Foster: for example, voters who ranked Foster at number 1 and Lester at number 9 with no other numbers in-between. 

Such votes were in theory defined as “partial informal votes” for Lester even though the votes had already been counted for Foster.

Of the 193 votes Justin Lester believed would have fallen his way in a recount, 145 of them had already gone to Foster because Foster had a valid preference before the “breach”.

Similarly, 73 of 109 “partial invalid votes” for Foster had already been counted as votes for Lester.

According to Lampp’s analysis if you counted those votes and took out all the votes that cancelled each other out, there would be 12 extra votes for Lester amongst the partial informal votes. 

But by law those votes couldn’t be counted. 

Ofsoske, who is not involved in the Wellington election, said the reason the law was so specific on that front was because it was difficult to interpret the purpose of a voter who decides to give a candidate a preference vote after a broken sequence of numbers. 

“With STV you do have to be a little more precise.”

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