Clive Palmer, newly returning to federal politics at the head of his United Australia Party, has been pursuing a case in the High Court which could change the way election nights take place in this country. I thought I’d run through the main points of the case and the impact if he was successful.
Clive Palmer’s case is a challenge to the AEC’s practice of designating two candidates in each seat that they expect to make the final preference count, in order to expedite the counting of preferences on election night.
On election night, staff in polling places first count the primary votes for the House of Representatives – how many ‘1’ votes each candidate receives. They then conduct an indicative two-candidate-preferred (2CP) count. This count distributes preferences from every candidate between two candidates pre-identified as likely to make it to the final round of the count.
The AEC identifies which two candidates will be in this count before election night, but the information is secret until polls close.
If we didn’t have an indicative 2CP count, we would have a lot less information on election night. While many seats are clearly decided on primary votes (either one candidate has a majority, or is close enough), close races cannot be determined based on primary votes. Analysts would instead have to rely on assumptions about how preferences will flow, leading to greater uncertainty.
The full distribution of preferences needs to wait until all votes have been received, since candidates are excluded in a particular order. So the 2CP count is a shortcut, and it gives us the result in almost every case. Occasionally the AEC picks the wrong two candidates, in which case the AEC would start over with a new 2CP count the day after the election. Very rarely there are races where it’s still not clear who will make the top two until the full distribution of preferences, but these cases are rare (although they are becoming more common).
So 2CP means we have the result of almost every seat on election night, rather than having to wait weeks, as was the case in Maine’s recent use of preferential voting. It’s fairly crucial to getting a clear and quick result under our voting system, and it works well.
Clive Palmer’s case doesn’t appear to be objecting to the general principle of an indicative 2CP count, but he does object to when this information is published. He is asking for the results of the 2CP count (and thus the information about which candidates the AEC has chosen) to not be released until 9:30pm AEST, which is the time when the final polling booths close on the Cocos (Keeling) Islands. I admit I had never really thought about the fact that a handful of voters would still be voting there and on Christmas Island after polls close in Western Australia at 8pm AEST.
I won’t go into the detail about his precise legal arguments – that’s not my area of expertise. But in brief, it appears part of his argument is that it violates the clause of the constitution which requires that federal MPs are “directly chosen by the people” to have public servants publishing official opinion about which candidates are more likely to win before polls close. There also appears to be an argument that it breaks the law, not just the constitution.
It seems like a pretty obscure problem. I doubt there are many voters in Western Australia (or even further west) who would be discouraged from voting because they see that the AEC has designated two candidates in a seat as the likeliest to win, particularly since they are more likely to hear about primary vote figures at this early stage. Clive Palmer’s objection appears to be partly grounded in the fact that the AEC chose Labor, not himself, to be in the indicative 2CP count in Fairfax in 2013, which turned out to be wrong. But I can’t see that decision having cost Palmer any Senate votes in Western Australia.
Palmer’s lawyers appear to be distinguishing between objective vote counts, which are already released before voting has closed in other seats, and an expression of official opinion about who might come in the top two. He is not arguing for a ban on election results being published at all until 9:30 (which used to be the practice in Canada).
So what would happen if he won?
It shouldn’t slow down the counting. When polls close at 6pm on the east coast, electoral staff would still be able to do the primary and 2CP count. But it would prevent the AEC from publishing any 2CP data for three-and-a-half hours after polls have closed for the vast majority of electorates.
So you would expect election night to be entirely about primary votes (presumably with the help of 2CP predictions based on expected preference flows) until 9:30, then there would be a sudden flood of real 2CP figures, at which point you’d expect a bunch of seats to be called.
If the election is a landslide, you’d expect a result to be called without 2CP counts but in close races I’d expect that we would hold back on calling a result as long as we were relying on predicted preference flows rather than real votes, which could delay the calling of a close election.
It seems unlikely that anything will change, but it will be interesting to see how the Court rules.