Tasmania 2021: Voters Who Voted In One House Instead Of Two

This year Tasmania controversially had Legislative Council elections on the same day as a House of Assembly election, for the first time ever.  With the election being called for May 1st on March 26 with no prior warning the Tasmanian Electoral Commission had very little time to adapt to the logistic challenges of some voters having to vote in both houses.  These voters were the voters in the eastern Launceston division of Windermere, which occurs entirely within the Assembly division of Bass, and voters in the large division of Derwent, which is mostly spatially in Lyons but includes many voters in the northern suburbs of Glenorchy within Clark. 

The initial controversy around the holding of the elections on the same day concerned potential unfairness to candidates.  Party candidates could benefit from generic party funding for the Assembly campaign while independent Legislative Council candidates were restrained by the Council's strict spending caps.  There were arguments about whether parties could even legally run generic campaigns without in the process incurring expenditure on behalf of their Legislative Council candidates, though so far in terms of post-election challenges this aspect has not come to anything.  As it happened voters voted quite differently in the two houses, so while the Lower House campaign may have distorted the Upper House outcomes, there isn't any clear sign that the latter are different to what would have been expected anyway.

However, today we had a sequel on another aspect of the dual elections, voter confusion.  This comes in the form of the Tasmanian Electoral Commission releasing a report (PDF 18 pp) investigating why the holding of dual elections failed to increase turnout in the Legislative Council to the extent that it might have done.  Turnout in Windermere did increase by 3.17% and in Derwent by 1.46% compared to 2015, but these were not the sorts of increases that were expected. 

It turned out that the reason turnout didn't increase more was that a lot of Derwent and Windermere electors voted in the House of Assembly but failed to vote in the Legislative Council.  The great majority of these - 1683 (6.3%) in Derwent and 1723 (6.3%) in Windermere - voted in booths outside their Legislative Council division on the day and were only able to vote in the Assembly election at those booths because they were not dual voting booths and hence had no Legislative Council ballot papers.  The report calls these voters "Group 1". 

A further group - 344 (1.3%) in Derwent and 231 (0.8%) in Windermere - should have been able to vote in both elections as they voted in the right places, but for whatever reason were not marked off the Legislative Council roll.  It has been assumed that these voters were not issued with Council ballot papers through staff error and were hence disenfranchised, though other explanations (staff failure to mark off a voter who actually voted, or a voter deciding to only put their Assembly ballot paper in the box) may have covered some cases.  These voters are called "Group 2".

The TEC has reached the conclusion that it should not petition against the outcome of the election, because the Group 1 voters failed to vote in the Council through their own failure to acquaint themselves with the process rather than through TEC errors (the report compares this to voters who unintentionally vote informally or who fail to reach the booth by closing time). The Group 2 voters may well have be affected by TEC errors but there were not enough to mathematically change the result.  This does not, however, prevent anyone else who might want to petition against the Windermere outcome from now using the same information.  It is commendable that the report has been made available well inside the window for any possible challenge.  

The outcome in Windermere: could it have been different?

Windermere was won by Liberal candidate Nick Duigan, who defeated Labor candidate Geoff Lyons by 1742 votes (54.14-45.86) after preferences.  However, Lyons only narrowly made the top two, outlasting independent Will Smith by 328 votes (1.54% of formal votes cast).  Had Smith made the top two, he would have needed a flow of preferences of about 70% from Lyons to win, but it is at least plausible that this would have occurred.  I am not aware of any actual scrutineering figures on the matter.  

The report includes maps of where Group 1 and 2 votes for each division were cast.  Group 1 votes were so widespread that there were Group 1 voters from Windermere voting on all of King, Flinders and Bruny Islands, with a large number of booths attracting tiny numbers apiece of such voters.  But as would be expected, most of these voters voted at Assembly booths close to the Windermere boundary.  763 voted in the nine booths closest to Windermere's south-western edge, 227 in other non-Windermere Launceston booths and another 195 in small towns close to Launceston.

Two booths shown in blue below are of particular interest:

(map: excerpt from TEC report p. 17) 

These are two booths showing very large numbers of Group 1 voters: Norwood (180 voters) and Newstead (177 voters).  Even after accounting for large voter totals at these booths, they have two of the highest three percentages of Group 1 voters as a percentage of all voters, both much higher than the similar East Launceston booth to their north, and also higher than comparable near-Derwent booths.  (The other booth with a very high percentage is Launceston, which is close to multiple voter sources).  An interesting thing here is that both Norwood and Newstead (sometimes then called Elphin) booths were within Windermere for the 2015 election.  But the 2021 Norwood and Newstead booths were outside Windermere, meaning that anyone in these suburbs in the habit of voting at the nearest booth and not paying any more attention than that would have voted outside Windermere.  

Given that Smith missed second by 328 votes, is there any basis for thinking that if all the 1954 voters had voted, he might have realistically made the top two?  This is a tall order, because he would have had to beat Lyons on three-candidate preferred by 17 points among the votes not cast even assuming all were formal.  However, there is some basis for thinking that the outcome had all those voters voted might have at least been closer.  This comes from the geography of votes near the edge of Windermere, noting again that a lot of the Group 1 votes were cast close to the south-western edge.  The three Windermere booths closest to the boundary were St Leonards, Inveresk and Invermay and these were respectively very good, good and average for Smith in terms of the gap between him and Lyons.  (Against that, booths a moderate distance away were good for Labor.)  The two booths that moved out of Windermere were likely to have been even better, as they were booths with a high gap between Ivan Dean and Labor in 2015, and such booths tended to also have high gaps between Smith and Labor in 2021:

(The red dots are booths very close to the Windermere boundary.) Dean beat Labor by 32 points in Elphin (Newstead) and 35 points in Norwood in 2015 so Smith would have been expected to beat Lyons on primaries by several points on primaries among these booths' voters in 2021, increasing to double figures after preferences.  Of course, most of the voters from these booths would have moved to other booths that were within Windermere, or perhaps prepolled.  Overall though, the area with the greatest potential for voter confusion was also an area where Smith polled well compared to Labor or was likely to have done so.  

Still, I don't think it's realistic that the missing voters overall would have propelled Smith to victory unless those missing voters were very demographically unrepresentative in some way that would have favoured him over Labor.  I also don't think it's at all likely that they were unrepresentative in such a way - it might even be that they were on average low-information voters who were less likely to vote for Smith (as an independent) than Labor.  So I'm confident that Duigan would have won anyway.  But it's unfortunate to have a situation in which so many people avoidably didn't vote in a race that was rather close - or even in the other race, Derwent, which wasn't.  That said, it's not exceptionally unfortunate, because LegCo elections always have turnout problems.  

Voter Communication

The report notes that the TEC went to considerable effort to inform dual voters where they had to vote - including by direct mailouts, by print advertising and of course on the TEC website.  However, many voters still weren't paying enough attention, or might have simply not seen the letters for whatever reason.  

I again stress that the TEC had very little time to prepare for this novel situation.  The report says that making all booths dual booths was impractical because of insufficient netbooks for roll markoff.  Some questions it would be interesting to have answers to include:

* Would it have been practical to make some booths outside but very close to the boundary of Legislative Council electorates dual booths, especially where such booths were the closest booths to the homes of voters living within those electorates, and hence the natural catchment booths for those voters?  

* What steps, if any, were taken to alert voters voting at non-dual booths (especially those just outside Legislative Council boundaries) to the need for Windermere and Derwent voters on the day to vote within their own electorates?  Assuming there was no such system, would such a system have been practical in the time available?

* Is there any evidence that any voters, on arriving in the wrong booth, actually realised their error and managed to successfully vote in both Houses anyway (including by casting their two votes across different booths)?  (EDIT: I understand from a comment on Twitter that there were some cases of this.)

It may be that it was simply not practical for the TEC to avoid the problems that occurred while also conducting the usual gearing up for a state election made more difficult by COVID and a snap election call.  But even if so, I hope these questions indicate some directions that should be taken to avoid these problems should joint elections ever occur in the future.  

Tasmania Should Have A JSCEM Equivalent

Recently the Legislative Council passed a motion calling on the government to support a joint committee to review each state election, along similar lines to the federal Joint Standing Committee on Electoral Matters (JSCEM) and similar committees that exist most prominently in NSW and Victoria.  The motion was supported by all Labor and Independent Legislative Councillors who voted on it or were paired, and was opposed by the Liberals.

I have believed for some time that Tasmania should have such a committee to routinely review elections and present recommendations, rather than the present situation in which Parliament starts inquiries into elections and electoral law on a purely ad hoc basis.  This is exactly the sort of issue that such a committee could usefully be investigating after an election including via hearings and examinations of witnesses. It is absurd to argue that a JSCEM style committee would duplicate the existing TEC report process when that involves a report by the TEC itself, rather than an external review by parliament.  

Unfortunately the debate about the proposed committee (June 29) displayed a degree of pre-installed mission creep as to what an electoral matters committee does.  An electoral matters committee investigates the running of an election by the relevant authorities subject to the relevant laws - it is not a vehicle for pursuing complaints about a party's preselections (eg Adam Brooks) or about the fact that the election was called early.  The government probably saw the proposal as a trap - if they agreed to it then they would have been legitimising the claim that there was something particularly dodgy about this election (and the previous one) and they would have also been legitimising conspiracy theories about the early election and false claims that the Brooks debacle called into question the overall result.  

Hopefully at some time in the future when these debates have cooled off, the value of having such a committee formed in order to meet after all state elections and consider the running of the election (but not other distractions) will be seen.

Update 22/7: Will Smith has said he is seeking legal advice over whether to challenge.  (Updated again) He says he will not be challenging, citing commitments to his youth program clients that a challenge would be a distraction to.