Out Of Many, One: The key constitutional requirement for the exercise of executive power in New Zealand is the confidence of a working majority of members of the House of Representatives. To suggest that the party which received the most votes cast must be a part of that working majority is both unconstitutional and undemocratic.
THE SEMANTIC DIFFERENCE between “the most votes” and “a majority of the votes” is about to become extremely important. Why? Because, constitutionally-speaking, winning more votes than any other party is nowhere near as important as winning more than half the votes cast and/or controlling more than half of the seats in Parliament.
It is, for example, quite possible for a party to hold the largest number of seats in the House of Representatives and yet find itself relegated to the Opposition benches by a combination of parties commanding a majority of the seats. This is because, under our constitution the Government must retain the confidence of the House to go on governing. The Parliamentary Opposition can test this with a motion of No-Confidence, which, to be carried, must be supported by more than half of the participating Members of Parliament.
That even the slightest confusion over “most” and “majority” continues to exist is one of the most pernicious legacies of the First-Past-the-Post (FPP) electoral system.
In order for FPP to produce a majoritarian outcome the electorate must be restricted to a choice of just two parties. If there are only two candidates contesting each electorate then the winner will attract not only the most votes but also a majority of the votes. FPP elections are contested electorate by electorate and the party accumulating more than half of the parliamentary seats is declared the winner and invited to form a government.
In its whole political history, New Zealand fulfilled this requirement for just eighteen years. From 1936 until 1954 our electoral landscape was dominated by two mass parties: Labour and National. No other political organisations came anywhere near them in terms of voter support. As a result, it was not unusual for the winning party to attract more than 50 percent of the popular vote. In the snap-election of 1951, for example, held in the wake of the infamous 1951 Waterfront Dispute, National received 54 percent of the votes cast.
In 1954, however, the Social Credit Political League brought New Zealand’s pure two-party system to an abrupt end. For the first time in our history, the monetary reformers of Douglas Social Credit fielded candidates in a General Election, attracting a very creditable 11.2 percent of the votes cast. Under our current MMP electoral system the Social Creditors would have been entitled to proportional representation, but in 1954 Social Credit failed to win a single seat and it was National, with just 44.3 percent of the popular vote (a whole 0.2 percentage points ahead of Labour) which ended up forming a government.
And so it continued for the next 42 years. Though the Social-Creditors’ support rose as high as 20.6 percent of the popular vote, it never won more than 2 parliamentary seats. More importantly, neither Labour nor National was ever again sufficiently popular to win more than half of the votes cast. In 1978 and 1981, not even winning the most votes was enough to make you the Government. In both of those elections National secured a parliamentary majority with fewer votes than Labour.
It was in this grossly inequitable FPP context of parties winning less than half of the votes cast but securing well in excess of half the parliamentary seats that the voting public’s propensity to confuse “winning the most votes” with “winning a majority of the votes cast” began to take hold. The semantic confusion was in no way lessened when, in the General Election of 1993, the Alliance Leader, Jim Anderton, pledged his support to the party which won the most votes. Fortunately for Mr Anderton, he was never obliged to keep his promise. But, if he had, it would have seen the left-leaning Alliance backing an incumbent National Government which 62 percent of the electorate (including his own followers) had failed to endorse.
The confusion was exacerbated three years later in the first General Election conducted under the new MMP voting system. In spite of the fact that 66 percent of the electorate (including his own followers) had declined to endorse the incumbent National-led Government, the NZ First Leader, Winston Peters threw his support behind the party with the most (33.8 percent!) votes.
With the 2011 General Election less than a fortnight away, alarm is already being raised at the prospect of any party other than the party winning the most votes being allowed to form a government. Already, any combination of parties commanding a majority of parliamentary seats – but excluding the party with the most seats – is being derided as a “Coalition of Losers”. Already, conservative commentators are issuing thinly-veiled threats that such a government would face mass protest action.
Decent New Zealanders will reject such threats. Those making them are behaving undemocratically and unconstitutionally.
If 51 percent doesn’t beat 49 percent – then what does?
This essay was originally published in The Press of Tuesday, 15 November 2011.