The Return of COVID-19


ANDREW GEDDIS | PROFESSOR OF LAW – UNIVERSITY OF OTAGO | AUTHOR OF ELECTORAL LAW IN NEW ZEALAND: PRACTICE AND POLICY, 2E

This article is republished with permission by the author. The original article can be found at The Conversation

The return of COVID-19 community transmission has thrown Auckland back into level 3 lockdown, and the rest of New Zealand into level 2 restrictions. It also raises real questions about New Zealand’s upcoming general election.

At present, polling day is scheduled for September 19. However, the planned election process actually would start far earlier. All candidates were to be nominated by August 21. Overseas voting was to commence on September 2, while advance voting in New Zealand beginning on September 5. It’s worth noting that in 2017, around half of all voters cast their ballot before polling day.

While the Electoral Commission has planned for such voting to still go ahead with the country under level 2 restrictions, the prospect of having our largest city under lockdown at election time goes far beyond that. It would make it very difficult, if not impossible, for something like a quarter of the electorate to vote. Unsurprisingly, therefore, there are calls for rethinking the September 19 election date.

How could such a rethink take place?

Up until the issuing of the election “writ”, which is the official instruction to go ahead and hold an election, the Prime Minister alone gets to decide when the election will be. Although the Governor General formally issues this writ, she does so purely on the Prime Minister’s advice.

That is why when Jacinda Ardern announced back in late January that we would be voting in September, everyone immediately noted the date in their calendar as “election day”. We all knew that once she advised the Governor General that this would be the election date, the necessary writ would be issued to make it happen.

However, that writ has not yet been issued. It is not planned to be until August 18. And as such, there is not yet any legal requirement that September 19 be our polling day.

Should the Prime Minister conclude the planned election date is no longer tenable, she can simply nominate another Saturday instead. It will have to be a Saturday, because by law our elections must fall on that day. Otherwise, she is free to pick any date up until early December, by which point the law says an election must be held as parliament’s three-year term elapses.

However, if parliament is dissolved, some of that flexibility disappears. By law, the Governor General must issue the election writ with the polling day included within a week of such a dissolution.

That is part of the reason why Jacinda Ardern postponed today’s planned dissolution of Parliament until at least next Monday. Doing so buys a little more time to decide whether a September 19 date is still feasible.

Not that much time, but. If candidates are going to be nominated, ballot papers readied and distributed, polling places set up and staffed then a decision on the election date really has to be made early next week. Delaying much beyond that point simply will not leave enough time to put the actual mechanics of the election in place for September 19.

What, then, if the Prime Minister decides that the election should go ahead as originally planned, but the COVID-19 situation does not improve (or, heaven forbid, even worsens)?

Well, amendments to the Electoral Act that came into force earlier this year address just such a possibility. These provisions permit the Chief Electoral Officer – not the Prime Minister or other political figure –  to halt voting at polling stations due to “an unforeseen or unavoidable disruption”, which includes the issuing of an epidemic notice.

Voting can be put on hold for an initial period of three days, with this suspension able to be successively extended for a week at a time following consultation with the Prime Minister and the leader of the Opposition. And there’s no limit to just how long such a suspension can last; the normal election timetable is suspended while it is in place.

So, if it then transpires that Covid-19 makes it just too unsafe to have people going to the polling places, the election can be delayed until it is safe. And the Electoral Act now also allows the Chief Electoral Officer to implement “alternative voting processes”, such allowing everyone to upload their ballot electronically as can be done for overseas voters. Or, mobile voting booths could be permitted to bring the vote to people who are self-isolating, rather than require them to visit school halls or supermarkets.

Whether or not polling day ought to be changed ultimately is a question that balances potential risks, practical considerations and political calculations. It is a one that likely will attract a fair amount of heated discussion in the next few days. But in terms of how it can actually be done, the legal machinery is reasonably clear.