A Vote For A Party Is Not A Vote For Any Other Party

I am hoping to put out a much-belated Poll Roundup later today or overnight (in short, Labor is currently ahead to such an extent that a polling failure at least as large as 2019 if not larger is probably now the Coalition's best remaining chance of winning, and a lopsided result is a growing chance.)  But I have been distracted yet again, this time by the need to comment on a form of electoral misinformation that I've found especially annoying at this election.  

This misinformation asserts that since one party, which I'll call Party X, has recommended preferences to another, which I'll call Party Y, on its House of Reps (or sometimes Senate) How To Vote card, that therefore a vote for Party X is a vote for Party Y.  Above are two typical examples.  The United Australia Party asserts that since Labor has preferenced the Coalition above the UAP, a vote for Labor is a vote for the Coalition.  Former Prime Minister Kevin Rudd claims that since the UAP is recommending preferences to the Liberals ahead of Labor "in seats that will decide the election", that a vote for the UAP has become a vote for the Scott Morrison-led Liberal Party. 

Both these claims have more problems than just the 'X put Y ahead of Z on their card so a vote for X is a vote for Y' argument.  The UAP claim is especially absurd because there are no seats except possibly Hughes where there appears to be a realistic prospect of Labor getting excluded before the UAP.  Of course, electoral realism was never the UAP's strong suit.  The Rudd claim is additionally misleading because (i) no-one knows yet whether this will be an election decided by outcomes in a few seats rather than (as polls, if right, suggest is far more likely and is usually the case) by overall national swings (ii) the UAP has been reported - in cases backed by sightings of how-to-vote cards on the ground - as recommending preferences against the Coalition in some seats considered to be in play, including North Sydney, Banks and Dickson.  (Probably if Banks or Dickson are falling the Coalition is losing heavily anyway but it would be overconfident to say the same regarding the prospect of North Sydney going Independent.)

However, the biggest problem with these claims is that they have the potential to mislead voters about the mechanics of the voting system.  Largely as a legacy of the old Group Ticket Voting system for Senate voting (abolished federally prior to the 2016 election and now persisting only in the Victorian state upper house and for Melbourne City Council) a significant minority of voters still wrongly believe that what a party does with its preferencing decisions determines where excluded votes for that party are sent.  Actually this was never true for House of Representatives voting, but the disreputable stain of preference-harvesting at the 2013 Senate election is such that I have even known voters with PhDs to think it is the case.

In fact, when a candidate is excluded in a House of Representatives seat distribution, the only thing that determines where the votes that candidate holds go next is the choices of the voters whose votes are with that candidate at that time: the candidate's primary votes and any votes they have received from other excluded candidates.  Where your vote goes is not affected by your party's preferencing decisions or how-to-vote card unless you choose to agree with those decisions or copy that card.

As such, if a voter votes 1 Labor and puts the UAP ahead of the Coalition their vote will never reach the Coalition while the UAP are in the race, and it is false to say their vote is a vote for the Coalition.  If a voter votes 1 UAP and puts Labor ahead of the Coalition, their vote will never reach the Coalition while Labor is in the race, and therefore it is false to say that their vote is a vote for the Coalition.  

It's fine to say a vote for X is a vote for Y if the voter follows the how-to-vote card, but that crucial condition is almost always omitted from claims of this kind.   It's also important here to bear in mind that for all the fuss about minor party how to vote cards, relatively few minor party voters follow them and usually their impact on outcomes is modest.  In the larger states, between 3% and 6% of UAP voters copied the party's Senate how to vote cards in 2019.  We don't have figures for the Reps but it would be surprising if it was above 15%.

Are these claims legal?

Section 329 of the Commonwealth Electoral Act regulates statements that are "likely to mislead or deceive an elector in relation to the casting of a vote."  The term "in relation to the casting of a vote" is relatively narrow - it is not a general prohibition on misleading or deceptive claims.  There has never been a direct test of whether claims of the sort covered above are illegal but there are some indications that the meaning of "in relation to the casting of a vote" goes further than just misleading statements about the rules for voting formally, the dates and times of voting, a voter's eligibility to vote, the way that votes are counted and so on.  It's an untested area but people making these claims shouldn't feel they are safe.  

In Evans v Crichton-Browne, the High Court found that claims that because the Australian Democrats had voted with Labor frequently in the Senate, a vote the Democrats was potentially a vote for Labor control of the Senate, were acceptable.  However, the Court noted that "For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party. "

The passage highlighted in bold does not concern the mechanics of a formal vote but concerns the impact of voting in a particular way.  If it is illegally misleading to state that a vote for Party X will have the same effect as voting for Party Y, then it is probably no different to state that a vote for Party X with a second preference for Party Z will have the same effect as voting for Party Y.  A voter who would otherwise have voted 1 Party X 2 Party Z might be dissuaded from expressing their actual preference by a false claim that this would assist Party Y to win their seat.  

I used to think a court would go out of its way to avoid making any such finding but at least one court has been more adventurous.  In a Victorian case in 2018, it was found, following Evans, that it was illegal for the Victorian Liberal Party to continue to distribute a multi-seat how-to-vote card that encouraged Liberal voters to vote 1 for a candidate who was on the ballot as a Liberal but had in fact been disendorsed.  The decision survived an appeal to the Victorian Supreme Court.  

Other contexts

There are at least three other contexts in which I have seen 'a vote for X is a vote for Y' type claims:

1. Formation of government

This argument takes the form 'If there is a hung parliament, candidate/party X will support party Y to govern, therefore a vote for X is a vote for Y'.   As mentioned above, an example of this form was found to be legal in Evans.  I have found that when I complain about messages like the two posted above, apologists for the messages will often claim that the message was really of this kind, even when it is crystal clear from the context that it is a claim based on preferencing decisions.  There are two problems with claims of this kind: 

(i) sometimes they are not credible (for example a widely circulated peas-in-a-pod pro-Labor meme that shows the Greens as one of a bunch of ways to re-elect Morrison, ignoring that the Greens have explicitly stated they will throw the government out if given the chance and would be eaten alive by their supporters if they didn't.)

(ii) in many cases while a given candidate might support a certain party if elected, there is actually no chance of that happening, so the voter can cast a protest vote for that party then preference their preferred major party without any risk of helping the other major to govern.  

2. Impact on seat result

This argument takes the form 'Putting Party X above Party Z could cause Party Y to win your seat, therefore a vote for Party X is a vote for Party Y.'  I especially often see this one in the case of Labor followers trying to scare people away from voting Green but recently some people have reversed it and pointed out that in some seats (especially seats being contested by teal independents), voting Labor could cause the Coalition to win the seat.

Often these claims succeed in confusing voters because not all voters understand that preferences flow at full value in the Reps when a candidate is excluded.  Whether there is actually any strategic merit on them depends on the facts of each individual seat.  In general where these claims concern the Greens and Labor, they are false, because the preference flows between these parties in seats where the Greens do well are roughly the same (if anything under compulsory preferencing the Labor to Greens flow is slightly higher on average, perhaps because ALP voters follow HTV cards more, but there are probably some such seats where it would be very slightly lower).  In teal independent seats, however, there is a real (but often overstated) strategic argument that a voter whose sole concern is the Liberals winning the seat should put the teal independent ahead of Labor and the Greens.  This is because the preference flows from Labor to independents tend to be stronger than the other way around.  

Nonetheless, the language 'is a vote for Party Y' is incorrect.  A vote is a vote for who the voter has voted for.  A preference is a preference for who the voter chose to preference.  A correct way of couching these claims is not to say that a person voting Labor who puts the Coalition last is voting for the Coalition to win, but rather to say that their vote could cause the Coalition to win.  I also think that trying to shame voters who do not want to vote tactically into voting tactically is wrong; if a voter wants to put the parties in order of preferences as instructed then that needs to be respected, whatever the impacts of them doing so.

3. Preferences to the enemy

This argument takes the form 'Some voters for party X preference party Y therefore a vote for party X is a vote for party Y.' It is most often seen in the context of a minority of Greens voters preferencing the Coalition, ie 'don't vote for the Greens because if they are excluded some of their votes go to the Liberals'.  This is a completely bogus argument that ignores the fact that the voter themselves decides where their preference goes.  If a voter votes 1 Green 2 Labor then their vote does not increase the number of Green preferences that go to the Liberals in their seat.  

Warning

Parties, candidates, even former Prime Ministers who make 'a vote for X is a vote for Y' type claims surrounding preference recommendations should be aware that I have very little patience for them.  Not only will I roast them on Twitter, but I have already reported some to the AEC and/or Twitter for disinformation, contributing so far to at least one tweet being deleted following an AEC request.  Further examples may be added to this article.  

Update: See Leonardo Puglisi's (6 News) takedown of an even worse effort by David Littleproud, which absurdly maintains that because one minor party recommended preferences against him, a vote for any minor party in his seat is a vote for Labor.