Vote 2020: Why the election date drama is more political than constitutional

Photo / Sylvie Whinray

Originally published by The Spinoff

Jacinda Ardern is preparing to make a major announcement on election timing as a majority of MPs appear determined to see it delayed. Public law expert Graeme Edgeler explores how it might all play out.

Auckland is currently in lockdown with people required to stay at home except for "essential personal movements", and will remain so for another week and a half, at least.

At this time, many of the time-honoured tools of an election campaign – door knocking, and public meetings – are illegal, and leave those taking part in them subject to infringement fees (like parking tickets) of $300, or fines of up to $1000.

It is reasonable to ask whether voters are well-served by a campaign in which a third of voters, and presumably around a third of candidates are required to be at home for anything that isn't permitted under the level three restrictions.

So, before we get to the constitutional hypotheticals, I will start with a prediction: the election will probably be delayed.

I am not certain, but after the move to level three in Auckland, this was always reasonably likely.

The prime minister had a few days in hand before needing to make the decision, so why not wait to allow yourself to have as much information as you can, before formalising it? With the statement from New Zealand First leader Winston Peters of his party's support for a delay, there is just one more reason for the prime minister to agree.

At level two, New Zealand might well push forward. The Electoral Commission is prepared to run an election at level two of New Zealand's Covid response plan. They have resourcing in place to use a form of the takeaway voting process for pockets of up 500 voters at level three, up to 5,000 voters nationwide.

If large parts of the country are at level three, the process becomes more involved, as Professor Andrew Geddis explained for the Spinoff. Following the Christchurch and Kaikoura earthquakes, parliament updated the Electoral Act to provide more structure to the power of the chief electoral officer to adjourn an election to allow alternative processes to be used, which I anticipate would occur if a heightened lock down of a large part of the country occurs after the election is formally ordered by the governor general.

But in light of the calls by the opposition and New Zealand First for a delay in the date of the election, how would that occur, and what constitutional issues could arise?

Dissolution delayed

Importantly, the constitutional questions in play are mostly pretty well understood. They may not be widely known, but just as any competent second year physics undergrad could probably explain the basics of special relativity, anyone with an undergrad education in public law should be able to explain the basics.

First: while an election date has been announced, the formal order officially setting things in train has yet to be issued by the governor general. There are still MPs, and the 52nd parliament is still in existence, so there's a bit of leeway. The first step in the process for directing an election is ending the old parliament. This can happen one of two ways: the parliament can expire at the end of its three-year term, or it can be dissolved by the governor general.

Dissolution was planned to happen last week, but after the move to level three, this was delayed. There was some room for slippage in the timetable, but if it is to happen in time for a September 19 election, dissolution would have to happen early this week, so the timetable for nominations and early voting, etc, could be put in play. If the prime minister decides to delay the election, she would simply not take the step of formally presenting the necessary proclamation to the governor general with instructions to sign it. If parliament isn't dissolved before 2pm Tuesday this week, the House of Representatives would meet for question time, and ordinary government business.

The dissolution could then simply follow in the next eight weeks, in advance of a later election. If it doesn't happen by October 12, the 52nd parliament will expire, and writ for the election will follow as a matter of course, with an election a month or so after the formal order that it be held. Following the usual calendar (there's some flexibility) an election that followed the expiry of parliament on October 12, 2020, would happen on November 21, 2020. It could realistically be pushed back a week, but anything further would likely need a law change, and pushing it into next year would need a parliamentary super-majority of 75% of MPs.

Matters of confidence

But if the prime minister was set on a September 19 election, could anyone force her hand?

There are a lot of hypotheticals, but again, the constitutional processes are well understood.

Importantly, none of the serious hypothetical are really constitutional questions at all, but political questions. With New Zealand First announcing its support for a later election, a majority of MPs now seem to be in support of one. This will doubtless factor into the prime minister's decision, but is not relevant to the question of what her powers are.

Constitutionally, the question of whether the prime minister has the power to recommend (ie instruct) the governor general to dissolve parliament and hold elections turns on whether the prime minister has the confidence of a majority of MPs.

At the time of writing, she does command the confidence of a majority of MPs. Accordingly, she has the power to direct the governor general to dissolve parliament and hold an election.

The letter sent by New Zealand First leader Winston Peters to the Prime Minister in support of holding a later election does not change this. The letter does not withdraw confidence in Ardern. Reports indicate that at a press conference on Sunday afternoon, Peters clearly stated the prime minister still has his confidence.

If Peters and New Zealand First wanted to force the prime minister's hand, its MPs would resign as government ministers and withdraw confidence. The expectation is that this would either be public, or would be made public shortly after it occurred. New Zealand does not have a political culture of MPs or ministers informing the governor general of such issues in private.

How would such a hypothetical occur?

First, Peters would inform the PM, probably in writing, that he was resigning, and New Zealand First was withdrawing support from the government.

The prime minister would inform the governor general that she was now operating as a caretaker prime minister, with the situation of who, if anyone, has the confidence of a majority of MPs to be prime minister in flux.

The prime minister would let everyone else know this was the state of affairs, likely at a hastily called press conference.

Not having the confidence of the house, the prime minister simply would not instruct the governor-general to dissolve the house. That instruction can only be made by either (i) a prime minister having the confidence of the house; or (ii) a prime minister lacking the confidence of the house, but with clear public support from a majority of MPs for the decision to dissolve.

If the prime minister were, for some reason, to still issue the instruction to the governor general to dissolve parliament, in a circumstance where she lacked confidence, the governor general would refuse. (Which, incidentally, is why in this hypothetical the instruction is never made.)

Political v constitutional

In fact, the governor general has very little to do with any of this. The entire process is political, not constitutional. The prime minister continues to be prime minister, applying the caretaker principle, while the political process plays out. And the governor general waits like the rest of us until there are public announcements resolving the issue.

In a constitutional sense this hypothetical would be fundamentally identical to the situation following an election.

Delay election

— Chris Keall (@ChrisKeall) August 16, 2020

Immediately after the 2017 general election Bill English was the prime minister. The election had changed the likely composition of parliament (it wouldn't be sworn in for some weeks), so it was not clear that that he continued to have the confidence of the House of Representatives.

After time for discussion between the parties, there were public statements announcing the results of coalition negotiations, and ultimately the signing of coalition agreements.

Following those public announcements, including a public announcement by English that talks between National and New Zealand First had ended, the governor general appointed Ardern the prime minister.

The situation is the same after a loss of confidence. The person holding officer as prime minister continues to do so. Members of parliament seek to find a resolution supported by a majority of MPs. Obvious options include: Ardern regains the confidence of enough MPs to remain prime minister; someone else obtains the confidence of enough MPs to become prime minister; MPs reach an impasse and agree that no resolution is possible.

Throughout all of this, executive government continues as normal, just with ministerial decision-making more circumscribed. The government has the lawful authority to spend money until June 30 next year.

Teachers and police officers continue to get paid, people breaking the law can be arrested and charged, and the machinery of government continues. And the governor general stays out of it until MPs resolve their political dispute.

This isn't a constitutional crisis. Really, it's not even a political crisis yet, but an interesting hypothetical with a clear constitutional overlay for MPs to sort things through.

Which probably won't even happen.

Graeme Edgeler is a Wellington barrister with a strong interest in electoral law.