We say that it should be the voters and the voters alone that determine who is and who is not a member of Parliament. At least, up until we say that pure chance should decide that matter.
The provincial election in the Canadian province of Prince Edward Island finally came to an end a couple of days ago when its last MLA was declared elected following a judicial recount.
(What - you didn't know that Prince Edward Island has just had an election? What are you, prejudiced against Anne of Green Gables or something?)
Why am I telling you this fact? Well, because the way that this last MLA was elected was somewhat unusual. You see, he retained his seat based upon the result of a coin toss.
After the judicial recount was completed, the incumbent (Alan McIsaac) ended up tied with his chief opponent (Mary Ellen McInnis) on 1,173 votes each. Another couple of candidates split an additional 481 votes between them. But as Canada retains pure FPP for its elections, the outcome meant no candidate had obtained a plurality of the vote.
In that situation, PEI law has required since 2008 that a coin toss take place. Which it did. And when the coin came down tails, Alan McIsaac was declared the electoral winner for reasons that get even odder.
Because if you are going to toss a coin, there's the question of who gets to call the outcome. What if both candidates want to be heads? What if both want to be tails? So in order to resolve that potential problem, the PEI electoral officials already had resolved that if a tie were to take place, then the candidate whose last name was closest to the beginning of the alphabet would be heads, while the one whose last name was closest to the end would be tails.
Easy enough if you have Aardvark tied with Zarathustra. But look at the names of the candidates in this tie. McIsaac and McInnis. So the decision on who would be heads and who tails was decided by the fourth letter of their last names, with McIsaac thus getting "tails" and so winning the eventual toss.
Which is about as random an outcome as you could imagine, really. And a somewhat quirky story to tell. But it got me thinking - what would happen here in New Zealand in the event of a tied result in an electorate? As it turns out, the Electoral Act 1993, s.179 requires much the same thing as in PEI:
(5) If there is an equality of votes between constituency candidates for a district and the addition of 1 vote would entitle one of those candidates to be declared elected, the Electoral Commission must, without delay, apply to a District Court Judge for a recount under section 180, and all the provisions of that section apply accordingly, except that no deposit is necessary.
(6) If on a recount under section 180 there is an equality of votes between constituency candidates and the addition of 1 vote would entitle one of those candidates to be declared elected, the Electoral Commission must determine by lot which of those candidates is to be elected.
This process has never actually been called into action in New Zealand. The 2011 result in Waitakere came pretty close, when after a recount Paula Bennett ended up taking the seat by only 9 votes. (If there's been even closer outcomes in our history, I'd appreciate you letting me know in the comments!) However, what if a tie does occur one day?
Well, according to the Electoral Commission:
The defining characteristics of any lot held would be that the result would be determined by chance. The lot would be conducted by the Electoral Commission in the presence of an independent observer such as a Justice of the Peace and the candidates in question. However, the Commission does not have a prescribed method by which the lot must be drawn.
Which is all very disappointing - I was hoping that there was an official election hat sitting in a back office somewhere, with two balls marked "winner" and "loser" in it, just waiting for an contest that needs resolving. But I'm sure that come a tie, the Commission will be able to think of something appropriate to satisfy the requirement of chance - there's plenty of different examples for it to choose from!
However, should resolving a tied election come down to blind chance? It's a method that's used widely in the USA, as this article recounts:
It's one of the weirder traditions of American democracy: In many states, if a race is tied, a "game by lot" -- cards, straws, or most often, a coin toss -- determines who goes to the house and who goes home. Months of campaigning, committee assignments, the fortunes of careers, the possibility of political change -- it all comes down, like possession in a football game, to heads or tails.
But it's not actually that common in Canada - PEI is one of only three provinces that uses random luck to determine tied elections. Seven other provinces (as well as federal election law) require that a by-election be held, one province leaves the seat vacant ... and two allow the district returning officer to cast the deciding vote!
Raising the question, which method is "fairer"? One can see the attractions of choosing by lot based on cost and expediency grounds - it's a heck of a lot cheaper and quicker to get candidates to draw something from a hat or toss a coin than to put the electoral machinery back into motion and have voters come back to redecide the matter. And having a coin toss choose who will be MP (or MLA, or whatever) is no less random than having whomsoever happens to be the district returning officer decide the matter.
But surely if we are committed to democracy - to the idea that the voters should get to choose their representatives based upon which individual is most preferred for the role - then cost and expediency concerns should not override the electorate's right to another vote at a by-election?
Well, maybe not. For one thing, you can't swim in the same river twice - or, rather, a second vote at a by-election will not be reflecting the same range of preferences as was expressed at the first. You will have different numbers of voters taking part (probably far fewer at the by-election than at the first vote). They will be voting in a different context (already knowing the result of national election). So it is questionable if it would be "fair" to allow a different number of people in a particular electorate a redo on their vote with that additional information available to them.
Furthermore, in NZ's MMP environment it doesn't really matter who wins a particular electorate. Apart from maybe four or five electorates, you may as well have flipped a coin to decide if a National or Labour MP would represent a given seat for all the difference it would make to the final shape of the House. So if that is the case, where the vote is tied, why not just do exactly that?
Anyway, it's all a bit hypothetical in the NZ context. But for something really weird, have a look at Sweden. Under its "Riksdag Act" (Riksdag being its Parliament):
If the vote is tied concerning which motion shall constitute the counter-proposal, the outcome is determined by lot.
If the vote is tied in a principal division, the matter is tabled. If the vote is tied when the matter is raised a second time, the Speaker puts the proposal that the matter be referred back to the committee for further preparation. The matter shall be referred back if at least half of those voting concur. In any other case, the decision of the Riksdag is determined by lot.
After a matter has been referred back, it shall be taken up again in its entirety for settlement by the Chamber. If the vote is tied again in the principal division, the matter is determined by lot.
So ... tied votes in the Swedish Parliament - including votes on what will or will not become law - get decided by pure chance.
Then note that between 1974-76 the Swedish Parliament was split into two equal blocs, 175-175. As a result, more than 100 votes - including votes on what became law - had to be decided by lot. For this reason, it was known as the "lottery Riksdag".
Following which Sweden changed the number of members to 349, thus limiting the chances of a tied vote in the future. But it has kept the rule that such ties would be settled by lot. Which is, as far as I can tell, unique in the world ... and I don't know why they do it.