Election 2023: Everything you need to know about the judicial recount

Nearly three million voting papers, 500,000 special vote envelopes, 20,000 staff and 72 electorates - the 2023 general election was a mammoth task.

But despite the vast numbers involved, three seats have come down to comparatively microscopic margins. Three candidates have filed applications for judicial recounts, which would be the most of any general election since the advent of MMP.

The Māori seat of Tāmaki Makaurau has the smallest margin, with Te Pāti Māori’s (TPM) Takutai Tarsh Kemp leading Labour incumbent Peeni Henare by just four votes. The seat has been held by Henare since 2014, although in the event he falls short he will return to Parliament on the party list.

While recounts don’t change the proportionality of the house, if Kemp loses the seat Parliament will reduce from 122 seats to 121, owing to her win causing an overhang.

Labour’s Rachel Boyack is leading Nelson by 29 votes over National’s Blair Cameron. The seat long held by National’s Nick Smith was taken by Boyack at the last election.

The typically impenetrable red fortress of Mt Albert is one of the more shocking results of the election; National’s Melissa Lee is trailing Labour’s Helen White by just 20 votes.

The last three MPs for Mt Albert were Labour leaders Helen Clark, David Shearer and Jacinda Ardern, who held a 21,000 vote majority in 2020. It has never been held by National.

The recounts are important. One judge who oversaw a recount said he made “hundreds” of calls on whether to include some ballots during the count. But how exactly does the process work?

How is a recount triggered?

When the final results are declared, any candidate can seek a judicial recount by applying to the Chief District Court judge and paying the $1022 deposit.

There is no threshold for a recount, and the deposit plus the threat of a costs order acts as a safeguard against frivolous applications. Deposits are refundable at the discretion of the judge if the recount was deemed reasonable.

Otago University Professor Andrew Geddis says most elections see one recount, but three is “out of the box”.

What does a recount look at?

The job isn’t quite as simple as emptying the boxes and starting from scratch. Geddis says the recount has two elements; a literal recount of the votes, and a closer look at disallowed votes.

Professor Andrew Geddis. Photo / RNZ

All ballots have to be checked against the electoral roll to ensure voters haven’t voted twice, are enrolled, and have voted in the right electorate. Even the voter’s mark on the voting paper can be called into question.

“A call has to be made as to whether the voter’s intent is obvious. If you can tell, you count the vote. If you can’t, it’s disregarded.

“Recounts always result in some change because of human error. But the change is usually less than 20 votes, give or take.”

How does the recount work?

After an application is made, the judge must organise a recount within three working days. The judge has sole discretion as to what is and isn’t counted.

The best description of the judicial recount process is from former District Court Judge John Adams. He oversaw the 2011 Waitakere recount between National’s Paula Bennett and Labour’s Carmel Sepuloni. The final count had Sepuloni winning by 11 votes, but after a recount, Bennett took it by 9.

The judge, the returning officer and their counting staff, representatives from the electoral commission, and scrutineers from each party assemble in a room. Often only the two frontrunners will send scrutineers.

Votes are counted according to the boxes they came in, usually one or two per voting place. As the recount occurs, the counters aren’t told of the previous result of each box, although the new sums are furiously checked against previous sums by an assistant in real time.

Any ballot paper that isn’t clear, or where a scrutineer has raised concerns, is placed before the judge. Scrutineers mustn’t talk directly to counters, as Judge Adams enforced when a scrutineer “who should’ve known better” approached a counter in 2011.

Previous recounts have taken three to four days.

What can change the result?

In Waitakere in 2011, many votes weren’t counted because a staffer failed to stamp them. Judge Adams ruled this an official error and included them in the recount.

Dual votes, where a person has voted twice, also aren’t counted. There were 12 suspected cases of dual voting in Waitakere in 2011, although one turned out to be siblings with similar names. Another was an elderly person, “possibly confused”, who voted both early and on the day. Their votes were not counted.

The mark on the paper, encouraged to be a tick, often isn’t. The Electoral Act requires not a tick but a clear voter intention. One 2011 Waitakere electorate voting paper was marked with the words “JON KEY” [sic] and a rectangle around the National logo. Judge Adams allowed it as a vote for Bennett.

“My favourite was the voter who emphasised their tick for Carmel Sepuloni by drawing a little orange heart [in the voting box],” Judge Adams also wrote in his recount judgment, allowing the vote.

Can you appeal a recount?

Yes - anyone can. A recount appeal is called an election petition - but it’s not a document with a list of signatures.

As Geddis explains: “Recounts are easy to ask for. Electoral petitions are much more involved, at the High Court level heard by three judges.”

The challenge is essentially a full-blown trial, where a voter or candidate alleges flaws in the process. Those flaws could be unlawful voting, corrupt or illegal practice, or procedural errors.

“It’s not so much involved with counting the votes, but an allegation the electoral process has not been lawfully followed.”

What if there’s a tie?

While some local government contests have resulted in a tie, Geddis says this has never happened in a general election. The Electoral Act is nonetheless prepared, dictating the winner must be declared by drawing lots.

“I believe they just toss a coin, but there is nothing specific in the act. A coin toss is the accepted thing, but some places in the United States play a hand of poker.”

The lack of specificity in the act could leave room for the birth of New Zealand’s latest constitutional convention.

Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.