Update (Thursday 6pm):
The contents of the post below, written overnight, have been dramatically superseded by today’s events. Firstly and most straightforwardly, Clive Palmer has been declared the winner in Fairfax by 53 votes. Secondly and more dramatically, the Australian Electoral Commission has made the bombshell announcement that 1375 verified votes from the original count, including 1255 above-the-line and 120 informal votes, have gone missing during the recount process. The AEC will proceed with a declaration tomorrow, but the initial balance of opinion among noted authorities (by which I so far mean Antony Green and Nick Minchin) appears to be that this will be the subject of a successful legal challenge that will cause the result to be declared void, resulting in the entire state of Western Australia going back to the polls.
The legal issues involved in this are beyond my pay grade (paging Graeme Orr and Antony Green), but I am aware of two precedents worth examining:
On February 15, 1908, a special election was held in South Australia to resolve a protracted dispute over the result of the election of December 12, 1906. The Senate election system at this time simply involved voters crossing boxes of three candidates (in the case of a half-Senate election), with the elected members being those to receive the most votes. Naturally enough, most voters voted for the three candidates of their favoured party. Support in South Australia being evenly balanced between Labor and Anti-Socialist (hitherto identified as Free Trade), this resulted in six candidates receiving very similar shares of the vote. Anti-Socialist Sir Josiah Symon and Labor’s William Russell emerged slightly ahead of the field and were clearly elected, but very little separated another Anti-Socialist candidate, Joseph Vardon, and two Labor candidates, D.A. Crosby and Reginald Blundell. The Court of Disputed Returns resolved that Vardon was the winner by two votes, but that it would have gone differently had it not been for the failure of a returning officer to initial ballot papers. The result with respect to Vardon was consequently declared void.
There followed a dispute as to whether this constituted a casual vacancy to be filled by the state parliament, which the Labor-controlled parliament of South Australia sought to do by selecting one of its own, James O’Loughlin. This was challenged by Vardon in the High Court, which determined that under the legislation existing at the time it was up to the Senate itself to decide if a vacancy existed. A bill was then passed to have this particular matter and all future recurrences referred to the High Court, which concurred with Vardon that a casual vacancy did not apply with respect to a void election result, and that a fresh election had to be held specifically with respect to the third seat. This was duly held with Vardon and O’Loughlin as the only candidates, with Vardon emerging the winner by 41,443 votes to 35,779 (source: Psephos).
So while there is certainly a precedent for an entire state to go back to the polls for a Senate election, it was conducted in the context of an entirely different electoral system. Presumably a new election would have to be for all six seats, and not simply a partial election as was held in 1908. The Vardon matter also involved the question of casual vacancies, which does not apply here in Vardon’s case, the result was declared void after his term had begun, whereas the term for this election does not begin until the middle of next year.
The other precedent which springs to mind for a re-staging of a multi-member election was that which followed the state election in Tasmania in 1979. Under its Hare-Clark system, each of Tasmania’s five electorates returned seven members (now five). The result for Denison in 1979, which returned four Labor and three Liberal members, was declared void because three of those elected were found to have exceeded statutory limits on campaign spending. This caused a new election for Denison to be held on February 16, 1980, this time resulting in Labor losing one of its four seats to Norm Sanders of the Australian Democrats.
That election we had a while back is still in a sense not over, with recounts continuing for Fairfax and the Western Australian Senate. While these recounts are shortly to conclude, there is unfortunately a fairly big chance that the next stop will be the courts.
The WA Senate recount was, last I heard, scheduled to be concluded either tomorrow or on Monday. The recount could potentially overturn the election of Labor’s Louise Pratt and the Palmer United Party’s Dio Wang in favour of Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party if it closes a 14-vote gap between Shooters and Fishers and Australian Christians at an early point in the count (although Labor reportedly plans a legal challenge if this occurs). Rechecking of over a million above-the-line votes has inevitably turned up anomalies, most notably a bundle of several hundred votes that were wrongly assigned to the informal pile, eliciting a predictably hyperbolic response from Clive Palmer. It should be observed that such votes will only have the potential to change the result if they affect the vote totals for Shooters and Fishers and Australian Christians, which applies only to votes cast for those parties or those which fed them preferences (No Carbon Tax Climate Sceptics in the case of Australian Christians, Australian Voice, Australian Independents and Australian Fishing and Lifestyle Party in the case of Shooters and Fishers) about 3.6% of the total. UPDATE: Oh dear the AEC reports a serious administrative issue in which 1375 verified votes from the original count, including 1255 above-the-line and 120 informal votes, have gone missing. Nick Minchin, who had ministerial oversight over electoral matters during the Howard years, suggests the entire election may have to be held again.
The Fairfax recount grinds on even more laboriously, owing to the Clive Palmer camp’s tactic of challenging literally every vote that goes against them, requiring them to be sent to the state’s chief electoral officer for determination. The tactic seems to have worked, because the recount process has seen Palmer’s lead steadily inflate from seven to 58. The ABC reports the recount should be concluded either by tomorrow or early next week. However, the Liberal National Party is reportedly set to launch a legal challenge against the result which, if the experience of the Victorian seat of McEwen at the 2007 election is anything to go by, will result in the Federal Court reaching determinations of its own on the status of disputed ballot papers.
Meanwhile, Kevin Bonham comprehensively catalogues points at issue in the Senate electoral system and the relative merits of proposed solutions, and a piece from Antony Green on the South Australian Legislative Council system also has a lot to say about the Senate.