BY GRAEME ORR

By-elections have been a fixture of our political landscape since colonial times, and then some. They emerged, at Westminster, in the 16th century Reformation Parliament. By the 17th century Restoration they were common. Not least as parliaments then had no limit on their duration; also perhaps as life was, as Hobbes observed, potentially nasty, brutish and short, even for men of rank.

Today, by-elections remain a fascinating element of our public law and broader constitutional landscape.   ‘Public law’, because of the legislative and administrative aspects to their regulation. ‘Constitutional landscape’ in two senses. Most obviously, the Constitution mandates them as a means to replace MHRs (members of the Commonwealth House of Representatives). But also in the sense that they play a constitutive role in the makeup of parliaments, to the point of potentially upsetting governments mid-term.

On Saturday there will be five of them to select MHRs. Adapting an Americanism, this unusual slew of constituency-races-on-a-day-that-is-not-a-general-election has been dubbed ‘Super Saturday’. In the US, by-elections get the sexier moniker ‘Special Election’.

Saturday certainly represents an unusual pile-up of otherwise independent electoral events.   Prior to Saturday, there have been 153 contested by-elections since the first federal parliament formed some 117 years ago. We can add to this a couple of occasions when Senate elections have gone astray and it was appropriate to have a Senate ‘by-election’ rather than a countback of party votes.

These, I promise, are all the statistics I will cite. I am no Antony Green. And my interest here is not in blinding readers with empirical facts, but in asking this question: for whom will Super Saturday be super?

The facile answer is ‘super for aficionados of section 44 of the Constitution’.   Four of the five by-elections have been triggered by the ongoing circus over dual citizenship. In particular, by the High Court’s rigid interpretation of the dual citizenship rule as a barrier to anyone possessing even the most formal and unknown allegiance to a ‘foreign power’.

Strictly these are ‘re-elections’, as distinct from ‘by-elections’, as the original elections were held to have legally failed. That is, we are not filling pure casual vacancies, as might be triggered by an MP dying, resigning, or falling under a party bus. But that hair-splitting distinction of terminology is irrelevant here. What I want to explore is the phenomenon of sending electors of particular constituencies back to the polls, in between general elections.

In 2015 I published a book about the importance of an understanding of the experiential dimension of electoral democracy to both political science and electoral law.   It went under the title Ritual and Rhythm in Electoral Systems: A Comparative Legal Account. Elections as Rituals would have been less of a mouthful and more mouth-watering. The conceit of the book is that public lawyers oscillate between the nodes of liberal norms and instrumental analysis. But in doing so we neglect the question of how the law is not only shaped by, but shapes, both symbolic and everyday experiences of democracy.

Ritual, for instance, is embedded in the experience of being prodded by law and administrative practice to vote at schools and halls. Sites of community, in which the ostensibly private act of secret balloting feeds into that most public of acts: refreshing our governments. All, by tradition, on that one day every three (or four at state level) years at which a secular society comes together.

But to mention these time periods is to also acknowledge the electoral ‘rhythm’, which sits alongside the various rituals of the campaign, polling booth, and election night. Electoral democracy has a seasonal element. It is recurrent and continual but not continuous.  After the electoral storm, there is time for some healing. Then, after the governmental honeymoon, an eventual day of reckoning.   All this is constitutionally significant.   As Dennis Thompson of Harvard Law School argued, the temporality of elections is important to notions of political equality. Imagine if different parts of the country voted on different days, some knowing how the others had voted.

Where in all this legal sociology do by-elections fit?   Clearly they share in some of the rituals of a general election. Rituals built around compulsory turnout, the tradition of Saturday polling, the challenge to that tradition of early voting laws sold to us in the guise of ‘convenience’. But those rituals are mooted. In a by-election, the polity as a whole does not come together. Just a small geographical part does. The great themes of party – political or alcoholic – are muted, as there is no national focus on the leaders claiming victory or conceding defeat late on election night.

Instead, the constituency becomes the focal point.   To those who hanker for more attention to candidates over party, this should be a boon.  But that is not our modern politics. Electoral law recognises this in providing for party labels on ballots and the public funding of parties.

The ritualistic meaning of by-elections instead is found in a focus on the swing, if any, against the governing party. By-elections thus become a chance for electors to deliver a bloody nose to the incumbent party, Prime Minister, or Premier. And if they don’t, they are read as bad omens for the opposition or its leader. Small wonder then, that at many by-elections in safe seats, the lesser of the major parties does not stand a candidate. When this happens, the entrails are even harder to read, and the ‘race’ becomes a one-horse one, accompanied by a cavalcade of minor and micro party candidates looking for 15 minutes of fame.

There are exceptions however, when the numbers in parliament are ultra-thin. This is the case this Saturday, and was so in the races in government held seats in late 2017, which Barnaby Joyce and John Alexander re-contested after also falling foul of the dual citizenship rule. (That each of those MHRs won handily suggested that voters did not think of Mr Joyce as a Kiwi fifth columnist, and care little for the technicalities of section 44(i)).

At times of knife-edge and hung parliaments – increasingly commonplace as the two party system erodes – by-elections can take on feverish jurisdiction-wide attention. In 1995, in Queensland, the Goss Labor Government lost power through one such re-run in the Townsville seat of Mundingburra, also the product of a Court of Disputed Returns case. This Saturday, despite five seats being up for grabs, the Coalition is safe in the sense that the seats were held by four Labor and one cross-bench MHR.

Super Saturday, then, for political nerds and the media alike.   The national media are swarming over the more volatile and marginal of the five electorates, whilst local media are enjoying an injection of advertising dollars through the campaign.   But what of the electors in a by-election. Should we envy or pity them?

Some will expect pity. The uninvited attention. The sense of wasted resources for an untimely electoral re-run. Others might feel excited that their unexpected ballot is magnified in value, either through protest voting or by leveraging it for policy promises to pamper their region. But therein lies the problem, from a perspective of ‘rhythm’.

The seasonality of general elections exists to enact a political cycle. It also has instrumental value – stability and predictability to governance. And normative value – voting on the same day treats us all as equals. By-elections disrupt this cycle. Upper houses have been derided as either rubber stamps, or undemocratic.  That claim is controversial. But it applies strongly to by-elections. Either they are a foregone conclusion and feel like an expensive way to let parties road-test policies and personalities. Or they are marginal and even critical to parliamentary majorities, in which case they give a small sliver of the citizenry an inflated voice.

Should we persist with by-elections?   We do not have them in the Senate. The Constitution provides that casual vacancies in the Senate be filled by a State parliamentary pick that respects the existing party balance wherever possible. In pre-proportional voting days, a Senate by-election could be held to replace an individual senator whose election failed. But it has long been accepted that a countback of votes, almost invariably generating a replacement from the same party, is fair and efficient – except where the whole Senate race has miscarried.

Would much be lost if we moved to a similar system for lower houses, with their single member electorates?  Some, such as the head of the Real Republic movement have proposed just this.  The party that won the seat at the general election could nominate the successor. This seems rational in terms of costs, fairness, and electoral-rhythm. Especially when the vacancy is court-ordered on a technicality – as with the recent dual citizenship cases – if not for the (ultra-rare) cases of parties winning through miscounting or fraud.

There are undeniable downsides however to doing away with by-elections. The greatest of these is encouraging more mid-term resignations, to leverage party hacks into seats – with a view to them gaining the benefit of incumbency recognition before the next general election – without risk of electoral backlash. But such incentives already exist, at least in safe seats.

There is also a constitutional barrier to doing away with by-elections in at least the House of Representatives. Members must be ‘chosen by the people’, under section 24 of the Constitution. So without a constitutional amendment we could not just legislate to let parties nominate a successor to a vacancy in a seat they held. And recounting the votes from the last election to re-fill the seat would utterly distort voters’ intentions, since the winning party would not be represented. (Some might think this a good disincentive to unnecessary resignations at least!)

One simple but virtuous reform would be to regulate the ability of a government, through a partisan speaker or instructions to the Governor or Governor-General, to manipulate by-election dates. This ruse is as old as by-elections themselves: in their earliest days, the Crown would delay them as long as desired to enable a pliable candidate to be found and influence to be exerted on the constituency or its key grandees.

The term by-election has its roots in the prefix ‘by’.  Lawyers assume it means ‘by’ as in old English, Norse derived ‘by’ meaning town or locality (think ‘by-law’ or ‘Grimsby’). It could just as well mean ‘by’ meaning near, in the sense of ‘by-pass’.  The by-election is the election you have when you are not having a full election. As a follower of the colour and administrative quirks of elections I’d not like to see them go. But rationally, in an era of party politics rather than local independents, what by-elections add in ritual is more than lost in their arhythmical drag on the electoral and parliamentary cycle.

 

Graeme Orr is a Professor of Law at the University of Queensland.

Suggested citation:  Graeme Orr, ‘Bye-bye By-Elections? Ritual and Rhythm and Voting out of Season’ on AUSPUBLAW  (23 July 2018) <https://auspublaw.org/2018/07/bye-bye-by-elections-ritual-and-rhythm-and-voting-out-of-season/>