Electoral petitions: by-election or next highest polling candidate wins?

I'm not convinced that a by-election is the necessary outcome of Peters succeeding with his electoral petition in Tauranga (although I am aware there differing views on this). I think the High Court has the power to declare the next highest polling candidate (although whether they do so may depend on the factual context). My analysis (following only brief research - E&EO!) is as follows: The Electoral Act sets up two means by which an allegation of "corrupt practice" (ie, knowingly overspending under s213(3)(a)) can be dealt with: - A prosecution for breaching s213(3)(a). - An electoral petition challenging the result in a constituency seat under s230. The prosecution path is relatively straight-forward because it happens independently of a challenge to the outcome of an election. If convicted, the MP's seat is declared vacant under s55(1)(e). As a consequence, under s129, a by-election is held. (And, of course, the MP guilty of a corrupt practice can't re-stand because they will be on the Corrupt Practices List and disqualified from voting/standing for 3 years.) However, if the issue arises in an electoral petition (as in the present Clarkson/Peters situation) I think the High Court has the power to declare the next highest polling candidate the winner of the seat: - If a candidate is found guilty of a corrupt practice under section 237, the “his or her election is declared void”. - Under section 243, the High Court then certifies the outcome of the petition, namely “whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void”. - My view is that the High Court’s power is threefold: declaring that the present winner didn’t win, declaring that another candidate won, or declaring the entire election (in that electorate) void. The different views, I think, arise from the issue about whether a voiding a candidate’s election voids only his or her election or the entire election (in that electorate). I think there are a number of factors which suggest the former is a possibility: - Section 238 specifically empowers the court to avoid the election if corrupt and illegal practices have prevailed such that it is reasonably supposed they affected the result. This seems to allow a wider power to declare the entire election void; the power in section 237 seems narrower and pertains solely to the candidate who is guilty of wrongdoing. - The fact section 55(g) refers to a vacancy being created as a result of an electoral petition is neutral, that is, it does not necessary trigger a by-election for the vacancy; it simply provides for the certified result of electoral petition to be implemented (electoral petition sometimes take months to determine – well after the original winner was sworn in in Parliament). - Overseas caselaw (below) contemplates the power to simply disregard the votes cast for a disqualified candidate, to (re-)compute the result of the election, and to declare the properly elected candidate. Unfortunately, the issue does not appear to have been considered before in New Zealand. It nearly was an issue in Creech v Boorman where the original winner of the seat, Boorman, was found guilty of a corrupt practice for overspending. However, the Court did not need to determine the consequence of voiding his election because it had already determined that Creech was the duly elected after a number of votes were invalidated. I’ve been searching for some overseas authority on this point. (Australia and the UK seem to have similar but not identical wording in their electoral legislation.) The Australian courts have adopted the position that whether votes for a disqualified candidate are simply disregarded and a new result is declared or whether a fresh election is required depends on whether voters’ real intentions can still be determined: - In Re Wood (1988) 78 ALR 257, the High Court of Australia ruled that a further election was not needed after the winning candidate for a Senate election was declared void (not an Australian citizen); the (preferential) votes for that candidate could simply be disregarded and a new winner declared. - In another case, Sykes v Cleary (No 2) (1992) 109 ALR 577, the HCA ruled that it should void absolutely the election for the NSW Senate because a winning candidate was not qualified to stand (because he was a civil servant); amongst other things, they said disqualification of the candidate and preferential system of voting because a “special count could result in a distortion of the voters’ real intentions because the voters’ preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the [disqualified candidate]”. - In Free v Kelly (No 2) (1996) 138 ALR 649, the HCA reiterated that the relevant principle was whether “an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters’ true legal intent or, conversely, would not result in a distortion of the voters’ real intentions”. - See also Scott v Martin (1988) 14 NSWLR 663 (election of candidate voided for bribery) where the Court recognised that the power to declare a next highest polling candidate “could be exercised appropriately in other circumstances” but declined to do so in that case and instead voided the entire election. The UK courts take the view it depends on whether the facts giving rise to the voiding of a candidate election were known to voters before they cast their votes. - In Drinkwater v Deakin (1874) LR 9, Brett J said:

I accept that which seems to me to have been always admitted to be the law before the case of R. v. Tewkesbury Corpn., viz. the proposition which I have expressed, as generally applicable to all cases where notice of the law as affecting any subject- matter is material, that is to say, where by the law, if certain facts exist incapacity exists, and where by the law, if the law were known to the elector, his vote would be thrown away if he persisted in voting for the disqualified candidate, he cannot, if the facts exist to his knowledge, or if he have notice of the facts equivalent to knowledge, which by law produce incapacity for election in the candidate, render his vote valid by asserting that he did not know that the facts by law produced such incapacity, or that his vote would be thrown away if he voted for such candidate. Applying those principles to the present notice, if it were the law that personal bribery rendered the person guilty of it incapable of being a candidate I should have thought that the notice was sufficient.

The candidate had been disqualified because he bribed voters (by allowing his tenants to kill rabbits on his estate). As this fact and potential disqualification has been made known to electors by his opposing candidate, the next highest polling candidate was declared elected. - Similarly, the Queens Bench in Re Bristol South East Parliamentary Election [1961] 3 All ER 354 declared the next highest polling candidate the winner after a candidate was disqualified (peers cannot stand for House of Commons) because the facts giving rise to disqualification were known to voters before they cast their votes – in that case, through a press release by the opposing candidate. (Key legislative provisions in the comment field)