tag:theconversation.com,2011:/us/topics/us-senate-reform-7418/articlesUS Senate reform – The Conversation2021-05-10T12:32:26Ztag:theconversation.com,2011:article/1601422021-05-10T12:32:26Z2021-05-10T12:32:26ZStates pick judges very differently from US Supreme Court appointments<figure><img src="https://images.theconversation.com/files/399326/original/file-20210506-14-1hfx412.jpg?ixlib=rb-1.1.0&rect=35%2C0%2C4000%2C2658&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Political pressure is focusing on the makeup of the U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-stands-on-december-11-2020-in-news-photo/1230073841">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p>The future of the U.S. Supreme Court is <a href="https://theconversation.com/supreme-court-losing-luster-in-publics-eyes-55802">politically fraught</a>. </p>
<p>The <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">court’s partisan balance</a> has <a href="https://theconversation.com/liberals-in-congress-and-the-white-house-have-faced-a-conservative-supreme-court-before-154782">long</a> been a <a href="https://theconversation.com/partisan-supreme-court-battles-are-as-old-as-the-united-states-itself-146657">hot-button issue</a>, and both Democrats and Republicans can correctly claim that the other party bears at least <a href="https://www.npr.org/2017/04/04/522598965/going-nuclear-how-we-got-here">some blame</a> for the <a href="https://theconversation.com/is-the-supreme-courts-legitimacy-undermined-in-a-polarized-age-99473">politicization of the federal judiciary</a>.</p>
<p>In 2016, appointments to the U.S. Supreme Court became even more overtly political when conservative Justice <a href="https://theconversation.com/former-clerk-on-justice-antonin-scalia-and-his-impact-on-the-supreme-court-55211">Antonin Scalia</a> died and the <a href="https://www.youtube.com/watch?v=YqRJXVXcVeE">U.S. Senate’s Republican majority refused</a> to let President Barack Obama <a href="https://theconversation.com/filling-the-supreme-court-vacancy-lessons-from-1968-55010">fill the vacancy</a>. </p>
<p>This delay ultimately gave soon-to-be President Donald Trump the chance to seat conservative <a href="https://theconversation.com/who-is-neil-gorsuch-72142">Neil Gorsuch</a> as Scalia’s replacement. Four years later, though, <a href="https://thehill.com/homenews/senate/527448-mcconnell-pushed-trump-to-nominate-coney-barrett-on-the-night-of-ginsburgs">Republicans rushed</a> to <a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">fill the vacancy</a> left by the death of liberal Justice <a href="https://theconversation.com/ginsburgs-legal-victories-for-women-led-to-landmark-anti-discrimination-rulings-for-the-lgbtq-community-too-146546">Ruth Bader Ginsburg</a> less than two months before a presidential election.</p>
<p>Now, with Democrats in control of the White House and – barely – the U.S. Senate, some within the party have been <a href="https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4508">calling for President Joe Biden to add more justices to the U.S. Supreme Court</a> in hopes of <a href="https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damage-column/6054522002/">reversing</a> Republican <a href="https://theconversation.com/mitch-mcconnells-legacy-is-a-conservative-supreme-court-shaped-by-his-calculated-audacity-147062">efforts</a> to <a href="https://www.theguardian.com/us-news/2020/apr/28/donald-trump-judges-create-new-conservative-america-republicans">enshrine conservatism</a> within the courts.</p>
<p>In response to those calling for reform, Biden has created the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/">Presidential Commission on the Supreme Court of the United States</a>, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”</p>
<p>This commission – which includes <a href="https://news.bloomberglaw.com/us-law-week/bidens-supreme-court-commission-whos-on-it-and-why-explained">scholars, lawyers and political advisers</a> – could <a href="https://theconversation.com/supreme-court-polarization-is-not-inevitable-just-look-at-europe-99356">look at top courts overseas for ideas</a> about how to <a href="https://theconversation.com/unlike-us-europe-picks-top-judges-with-bipartisan-approval-to-create-ideologically-balanced-high-courts-146550">depoliticize</a> the U.S. Supreme Court. But its members could also learn lessons from the states, many of which have already taken steps to insulate their judicial branches from partisan politics.</p>
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<h2>State court lessons for depoliticization</h2>
<p>Following the model set by the U.S. Constitution, <a href="https://www.lindenwood.edu/files/resources/stuteville.pdf">many state constitutions</a> initially called for governors to appoint state judges for life with the advice and consent of the state’s Senate. Over time, many felt that this system empowered governors to award judgeships based upon party loyalty <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">rather than judicial temperament and fair-mindedness</a>. </p>
<p>In the mid-1800s, <a href="https://www.history.com/news/andrew-jackson-populism">populism</a> swept the country. This movement toward giving power to the public prompted several states to amend their state constitutions to allow for the <a href="http://www.judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm">popular election of judges</a>. </p>
<p>This did not solve the problem of judicial politicization, as <a href="http://judicialselection.us/uploads/documents/Berkson_1196091951709.pdf">judges were often beholden to the political machines that helped them get elected</a>. As such, the public began to perceive elected judges as both partisan and corrupt, and turned against the courts. For example, <a href="https://core.ac.uk/download/pdf/217044329.pdf">between 1918 to 1940</a> only two Missouri Supreme Court judges were reelected.</p>
<p>In <a href="http://judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm?state=">1940</a>, Missouri became <a href="https://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=2147&context=open_access_dissertations">the first state</a> to adopt what is now called the “<a href="https://www.britannica.com/topic/Missouri-Plan">Missouri Plan</a>” for selecting judges, which involves two elements: “assisted appointments” and nonpartisan “retention elections.” </p>
<p>Typically, for assisted appointments, a nonpartisan commission reviews candidates for state judgeships, creating a list of potential nominees <a href="http://www.judicialselection.us/uploads/documents/ms_descrip_1185462202120.pdf">based on merit</a>. The governor fills vacancies on the bench by choosing from this predetermined list. In such a system, <a href="http://www.judicialselection.us/uploads/Documents/Judicial_Merit_Charts_0FC20225EC6C2.pdf">the governor’s pick does not usually need to be confirmed by the state legislature</a> because the pick has already been vetted by the nonpartisan commission. </p>
<p>For retention elections, judges face no opponent and are listed on the ballot <a href="https://www.courts.mo.gov/page.jsp?id=297">without political party designation</a>. Voters are simply asked whether an incumbent judge should remain in office, which provides an opportunity to oust judges who regularly make unpopular decisions. Retention elections are often held in states that use assisted appointments. However, in some states that still elect their judges using partisan elections, such as <a href="https://ballotpedia.org/Judicial_selection_in_Illinois">Illinois</a>, nonpartisan retention elections are used when it’s time for reelection.</p>
<p>Today, <a href="https://ballotpedia.org/Assisted_appointment_(judicial_selection)">more than 30 states</a> use some form of assisted appointments. <a href="https://ballotpedia.org/Retention_election">More than 20 states</a> use some variation of retention elections. More than a dozen states use both in some capacity. Notably, both “red” states and “blue” states have adopted one or both of these reforms, as have many “purple” states.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men shake hands" src="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=540&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=540&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=540&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Barack Obama’s nomination of Merrick Garland to the U.S. Supreme Court sparked a partisan fight.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ObamaSupremeCourt/7f2430eea2f8409cbe62880a1039cbe3/photo">AP Photo/Pablo Martinez Monsivais</a></span>
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</figure>
<h2>Showing the way forward?</h2>
<p><a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3841&context=mlr">Advocates of Missouri’s nonpartisan court plan</a> argue that the reforms have been a <a href="https://www.courts.mo.gov/page.jsp?id=297">success</a>. According to <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">Sandra Day O'Connor</a>, <a href="https://www.britannica.com/biography/Sandra-Day-OConnor">the first woman to serve on the U.S. Supreme Court</a>, “the ‘Show-Me State’ … has shown the nation how we can do a better job of selecting our judges.”</p>
<p>If the federal government adopted assisted appointments, campaign tactics like Trump’s 2016 <a href="https://www.youtube.com/watch?v=wd06ZjhEEEk">promise to appoint pro-life, conservative judges</a> would be less <a href="https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/">relevant</a>, because presidents would be limited in whom they could nominate for a court vacancy.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Additionally, if voters could remove U.S. Supreme Court justices whose opinions <a href="https://www.npr.org/2020/10/05/920416357/justices-thomas-alito-blast-supreme-court-decision-on-gay-marriage-rights">differ</a> from that of the <a href="https://www.nbcnews.com/feature/nbc-out/support-gay-marriage-reaches-all-time-high-survey-finds-n1244143">majority</a> of Americans, politicians might not feel as pressured to block the appointment of a <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">particular justice for partisan reasons</a>, as the judge would serve on the bench for only as long as they retained <a href="https://theconversation.com/are-you-suddenly-interested-in-the-supreme-court-youre-not-alone-99657">public support</a>.</p><img src="https://counter.theconversation.com/content/160142/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many states have found ways to remove partisan politics from their court systems.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1235512019-09-13T18:29:19Z2019-09-13T18:29:19ZThe Senate filibuster explained – and why it should be allowed to die<figure><img src="https://images.theconversation.com/files/292468/original/file-20190913-8674-p6pzrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The filibuster is like a stoplight that's always red.
</span> <span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span></figcaption></figure><p>Sen. Elizabeth Warren <a href="https://www.npr.org/2019/09/12/760375754/what-is-the-filibuster-and-why-do-some-democrats-want-to-end-it">is the latest Democrat</a> to argue an arcane Senate rule governing debate stands in the way of passing a progressive agenda, such as meaningful gun control. </p>
<p>The procedure, known as the filibuster, allows a 41-vote minority in the Senate to block legislation. Its power has been steadily eroding, however, as both Democratic and Republican lawmakers create procedures to get around the roadblock to pass everything from the Affordable Care Act to President Donald Trump’s Supreme Court nominees. </p>
<p>Should the Senate move even farther toward being a legislative body characterized by majority rule rather than minority obstruction?</p>
<p>Many Democrats, including me, might resist anything that helps Trump and his GOP Senate majority pass their agenda. Yet as a <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">scholar of the Senate</a> and advocate of responsible government, I believe the end of the 60-vote Senate would nonetheless be a good thing for the country – and conform to the founders’ intentions.</p>
<h2>The filibuster explained</h2>
<p>The filibuster, which comes <a href="https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm">from the Dutch word</a> for pirate, is embodied in Senate Rule XXII. It says cloture – a motion to end debate on a bill – requires a supermajority of at least 60 votes on most matters under consideration.</p>
<p>Although <a href="http://www.politico.com/story/2017/04/senators-urge-save-filibuster-237014">some lawmakers argue</a> the filibuster is what makes the Senate unique, a supermajority threshold is not what defines the legislative chamber.</p>
<p>As <a href="https://www.brookings.edu/book/politics-or-principle/">political scientists</a> and historians have noted over and over again, supermajority cloture is not part of – and cannot be derived from – the Constitution or any original understanding of the Senate. Elements such as equal representation by the states, six-year terms and a higher age requirement <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">are what distinguish</a> the Senate’s style of deliberation and decision-making from the House.</p>
<p>In fact, although it may seem like the 60-vote filibuster has been with us forever, <a href="https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm">it’s actually only been around</a> since 1917.</p>
<p>Moreover, the protection of the minority, often cited as a justification for the filibuster, is of the system as a whole: the separate branches, the checks, federalism. It’s not the role of the Senate alone to protect minority interests.</p>
<h2>Filibuster erosion</h2>
<p>Over several decades, Congress has used dozens of legislative “carve-outs” that have eroded the filibuster and protected specific categories of legislation from minority obstruction in the Senate.</p>
<p>For example, lawmakers use a <a href="https://www.senate.gov/CRSpubs/445f5bac-e33d-403b-b78e-ab7d2610c421.pdf">“fast-track” procedure</a> to pass <a href="https://fas.org/sgp/crs/misc/R43491.pdf">trade agreements</a> and <a href="https://fas.org/sgp/crs/natsec/R43102.pdf">decide whether to close military bases</a>. This places a time limit on consideration and quashes minority obstruction in the Senate because a simple majority vote will be held at the end of the time restriction. </p>
<p>Increased use of <a href="https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation">budget reconciliation</a> for <a href="https://www.politico.com/magazine/story/2017/10/15/how-budget-reconciliation-broke-congress-215706">major legislation</a> is another carve-out. The <a href="https://www.ehealthinsurance.com/resources/affordable-care-act/history-timeline-affordable-care-act-aca">Affordable Care Act</a>, <a href="https://constitutioncenter.org/blog/will-the-legislative-filibuster-fall-along-with-obamacare">efforts to repeal</a> that law and the <a href="https://www.vox.com/policy-and-politics/2017/11/14/16634200/republican-tax-reform-byrd-rule">2017 Trump tax cut</a> are examples of this process. </p>
<p>In 2013, Democrats controlling the Senate took it a step farther and <a href="https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html">voted to allow all nominations</a> other than for the Supreme Court to be approved by majority vote. This was the most important change in Senate standing rules – or, to be precise, in their interpretation – since at least 1975. It allowed Democrats to confirm a <a href="https://www.degruyter.com/downloadpdf/j/for.2015.13.issue-4/for-2015-0042/for-2015-0042.pdf">significant number of nominations</a> for President Barack Obama who were being blocked by the Republican minority. </p>
<p>Just over three years later, the Senate, now under GOP control, <a href="http://thehill.com/homenews/senate/327591-gop-triggers-nuclear-option-gutting-filibuster-in-gorsuch-fight">voted</a> to apply the same interpretation to nominations to the Supreme Court. The immediate result, of course, was the <a href="https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html">slim confirmations</a> of Neil Gorsuch and later <a href="https://www.cnn.com/2018/10/06/politics/how-senators-voted-on-brett-kavanaugh/index.html">Brett Kavanaugh</a>. </p>
<h2>Restoring the Senate’s important but limited role</h2>
<p>Today, the 60-vote Senate remains powerful but circumscribed. </p>
<p>This threshold for ending debate still applies to most legislation, including appropriations bills and most laws in areas such as military policy, the environment or civil rights. And for Democrats hoping to occupy the White House in 2020, the need of a supermajority would likely prevent action on gun control, a Green New Deal and significant health care legislation like “Medicare for All.”</p>
<p>But by creating the various restrictions on its use in recent years, the Senate has repeatedly recognized that the 60-vote threshold is often dysfunctional and that the costs to effective governance are too high. The norms that support the supermajority Senate are eroding. </p>
<p>It’s also contributed to broader congressional dysfunction. The Senate behaves less and less like the world’s “<a href="https://www.loc.gov/item/2016683162/">greatest deliberative body</a>” – as some like to believe – and more like the least deliberative, particularly under the leadership of Majority Leader Mitch McConnell. The Senate <a href="https://www.nytimes.com/2019/08/03/us/politics/senate-votes-mcconnell.html?searchResultPosition=4">rarely debates</a>, and McConnell – in his <a href="https://thehill.com/homenews/senate/440041-mcconnell-pledges-to-be-grim-reaper-for-progressive-policies">self-styled role as the “grim reaper”</a> – doesn’t allow amendments or legislation that he or the president disagrees with to come up for a vote, regardless of how much support it has in the chamber.</p>
<p>I believe the Senate should change its rules to allow a simple majority to close debate on any bill, nomination or other matter, while also guaranteeing a minimum period of debate for any piece of legislation, which would allow the minority position to be voiced and debated. </p>
<p>In so doing, the Senate would end its undemocratic pretensions and resume its prescribed and limited role in the system of checks and balances. That would be a good thing no matter which party controls the Senate and regardless of who is, or will be, president.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/trumps-right-about-one-thing-the-us-senate-should-end-its-60-vote-majority-88761">article originally published</a> on Dec. 13, 2017.</em></p>
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<p class="fine-print"><em><span>Daniel Wirls is on the Board of the Council for a Livable World.</span></em></p>Sen. Warren said the filibuster stands in the way of gun reform. It does, and so much more.Daniel Wirls, Professor of Politics, University of California, Santa CruzLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/887612017-12-14T03:56:14Z2017-12-14T03:56:14ZTrump’s right about one thing: The US Senate should end its 60-vote majority<p>As the <a href="https://uk.reuters.com/article/uk-global-poy-trump/trumps-first-year-in-office-marked-by-controversy-protests-idUKKBN1E01W5">dramatic and traumatic first year</a> of the Trump presidency nears the finish line, with major legislative struggles over <a href="https://www.washingtonpost.com/business/economy/johnson-to-back-senate-tax-bill-putting-gop-leaders-close-to-securing-passage/2017/12/01/0226ff98-d6a2-11e7-b62d-d9345ced896d_story.html">tax legislation</a> and the <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/11/28/5-very-real-scenarios-that-could-lead-to-a-government-shutdown/">budget</a>, it is easy to overlook other important political events.</p>
<p>One such development is essential to both the tax reform package, which would be Trump’s only significant legislative achievement to date, and the less noted but spectacular success the president has had with <a href="https://www.nytimes.com/2017/11/11/us/politics/trump-judiciary-appeals-courts-conservatives.html">judicial nominations</a>.</p>
<p>In both cases success has depended on procedures created to negate the Senate filibuster, which is better thought of as minority obstruction.</p>
<p>The question now is, should the Senate move even further toward being a legislative body characterized by majority rule rather than minority obstruction?</p>
<p>Many Democrats, including me, might resist anything that helps President Donald Trump and his GOP congressional majority. Yet as a <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">scholar of the Senate</a> and advocate of responsible government, I believe the end of the 60-vote Senate would nonetheless be a good thing for the country – and conform to what the founders intended.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sen. Charles Schumer and former Senate Majority Leader Harry Reid defend their vote to weaken the filibuster.</span>
<span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span>
</figcaption>
</figure>
<h2>Limited nuclear warfare in the Senate</h2>
<p>On Nov. 21, 2013 the Senate, under Democratic control, <a href="https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.3b953842dea7">decided by a 52-48 vote</a> that the “vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” </p>
<p>These few and perhaps obscure words embodied the most important change in Senate standing rules – or, to be precise, in their interpretation – since at least 1975.</p>
<p>Rule XXII is the Senate rule that defines <a href="https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm">cloture</a> – a motion to bring debate to a close – and requires a supermajority of at least 60 votes on most matters under consideration. The 60-vote threshold is what empowers filibusters or minority obstruction and can prevent a final vote on legislation. The 2013 decision eliminated that barrier for nearly all nominations to the executive and judicial branches. This allowed Democrats to confirm a <a href="https://www.degruyter.com/downloadpdf/j/for.2015.13.issue-4/for-2015-0042/for-2015-0042.pdf">significant number of nominations</a> after cloture was invoked with a simple majority vote.</p>
<p>Just over three years later, on April 6, 2017, the Senate, under GOP control and with exclusively Republican support, <a href="http://thehill.com/homenews/senate/327591-gop-triggers-nuclear-option-gutting-filibuster-in-gorsuch-fight">voted by the same margin</a> to apply the same interpretation to nominations to the Supreme Court. The immediate result, of course, was the <a href="https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html">easy confirmation</a> of Neil Gorsuch. </p>
<h2>What this means</h2>
<p>These decisions are significant for four reasons.</p>
<p>First, an entire category of Senate business, its constitutional duty to give “advice and consent” on presidential nominations, was protected from obstruction by the minority.</p>
<p>Second, only a few years apart, a majority from each party voted to categorically restrict the filibuster.</p>
<p>Third, in each case the Democratic or Republican majority employed the same controversial method – often referred to as the <a href="https://www.senate.gov/CRSpubs/cc582238-01e2-41b2-b955-5fdb2ed7b778.pdf">“nuclear option”</a> or <a href="http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf">“constitutional option”</a> – to make these significant changes in a standing rule of the Senate.</p>
<p>Instead of amending the wording of the standing rule, the majority called for a parliamentary interpretation and ruling, which requires only a simple majority vote to sustain or overturn. </p>
<p>Finally, this change will likely endure now that it has been sustained by majorities of both Republicans and Democrats.</p>
<h2>Fast-tracking past the filibuster</h2>
<p>Use of the so-called nuclear option was spectacular, controversial and did bring significant change to the Senate. Yet these moves have also been complemented by a different type of limitation on minority obstruction. </p>
<p>Over several decades, Congress has forged and used dozens of legislative “carve-outs” or – to use congressional scholar <a href="https://www.brookings.edu/book/exceptions-to-the-rule/">Molly Reynold’s term</a> – “majoritarian exceptions” that protect specific categories of legislation from minority obstruction in the Senate.</p>
<p>Every legislative carve-out features a time limit on consideration that applies to both chambers. This quashes minority obstruction in the Senate because a simple majority vote will be held at the end of the time restriction. The term <a href="https://www.senate.gov/CRSpubs/445f5bac-e33d-403b-b78e-ab7d2610c421.pdf">“fast-track”</a> is often associated with these provisions that expedite congressional consideration. These include such specifics as approval of <a href="https://fas.org/sgp/crs/misc/R43491.pdf">trade agreements</a> and the <a href="https://fas.org/sgp/crs/natsec/R43102.pdf">military base closure process</a>. In each case, lawmakers used a “fast-track” procedure to prevent obstruction.</p>
<p>Looming large in this category is the increased use of <a href="https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation">budget reconciliation</a> for <a href="https://www.politico.com/magazine/story/2017/10/15/how-budget-reconciliation-broke-congress-215706">major legislation</a>, such as the final work on passage of the Affordable Care Act, the 2017 attempt to repeal that law and the current Republican tax legislation. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=477&fit=crop&dpr=1 600w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=477&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=477&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=599&fit=crop&dpr=1 754w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=599&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=599&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former Sen. Strom Thurmond exits the Senate after he held a 24-hour filibuster – the longest ever – in hopes of stopping the Civil Rights Act of 1957. The bill easily passed two hours later.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<h2>Restoring the Senate’s important but limited role</h2>
<p>The 60-vote Senate remains powerful but circumscribed. This threshold for ending debate still applies to most legislation. This includes appropriations bills and most laws in areas such as military policy, the environment or civil rights.</p>
<p>Still, the combination of the legislative carve-outs with the entire category of nominations nevertheless constitutes a serious diminution of supermajority politics. </p>
<p>Following the second nuclear option in 2017, many senators and observers asked whether the Senate might be heading toward the elimination of supermajority cloture entirely. “Let us go no further on this path,” <a href="https://www.nytimes.com/2017/04/06/us/politics/filibuster-senate-republicans.html?_r=0">said</a> Minority Leader Chuck Schumer. </p>
<p><a href="http://www.politico.com/story/2017/04/senators-urge-save-filibuster-237014">A letter</a> signed by a bipartisan group of 61 Senators implored the majority and minority leaders to help them preserve 60 votes for most legislation. Sen. Lindsay Graham, who voted for the 2017 nuclear option, <a href="http://www.weeklystandard.com/read-lindsey-grahams-speech-on-the-court-filibuster-and-future-of-the-senate/article/2007549">warned</a> that if the Senate does away with the requirement, “that will be the end of the Senate.”</p>
<p>While most senators showed little appetite for further curtailment of supermajority cloture, President Donald Trump was ready to go all the way. Trump has more than once tweeted, with characteristic imprecision, his support for an end to all 60-vote thresholds in the Senate, the first time a president has taken such a stance. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"890931465885798400"}"></div></p>
<h2>Finish what it started</h2>
<p>In this rare instance, I agree with the president.</p>
<p>By creating these restrictions, the Senate has repeatedly recognized that the 60-vote threshold is often dysfunctional and that the costs to effective governance are too high. </p>
<p>The norms that support the supermajority Senate are eroding. And from a constitutional perspective, that’s just fine. Contrary to Graham’s all too common sentiment, a supermajority threshold is not what defines the Senate.</p>
<p>As <a href="https://www.brookings.edu/book/politics-or-principle/">political scientists</a> and historians have noted over and over again, supermajority cloture is not part of and cannot be derived from the Constitution or any original understanding of the Senate. Elements such as equal representation by the states, six-year terms and a higher age requirement <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">are what distinguish</a> the Senate’s style of deliberation and decision-making from the House.</p>
<p>In fact, although it may seem like the 60-vote filibuster has been with us forever, <a href="https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm">it’s actually only been around</a> since 1917.</p>
<p>Moreover, the protection of minority interests, often cited as a justification for the filibuster, is a product of the system as a whole – the separate branches, the checks, federalism – not the self-appointed duty of the Senate.</p>
<p>To finish what it started, the Senate could change its rules to allow a simple majority to close debate on any bill, nomination or other matter, while also guaranteeing a minimum period of debate, which would allow the minority position to be voiced and debated. </p>
<p>In so doing the Senate would end its undemocratic pretensions and resume its prescribed and limited role in the system of checks and balances. That would be a good thing no matter which party controls the Senate and regardless of who is, or will be, president.</p><img src="https://counter.theconversation.com/content/88761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Wirls does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Republicans were able to push through a tax plan and a flurry of judicial nominees after the Senate curtailed use of the filibuster. It’s time to go all the way.Daniel Wirls, Professor of Politics, University of California, Santa CruzLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680462016-11-02T03:46:19Z2016-11-02T03:46:19ZExplainer: what is the challenge to Bob Day’s Senate seat all about?<figure><img src="https://images.theconversation.com/files/144146/original/image-20161102-12173-1hof7cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family First senator Bob Day, who has now resigned his Senate seat.</span> <span class="attribution"><span class="source">AAP/Sam Mooy</span></span></figcaption></figure><p>Family First Senator Bob Day has resigned from the Senate, but <a href="https://theconversation.com/now-resigned-bob-day-may-have-been-ineligible-to-sit-in-senate-67984">controversy now rages</a> about whether or not he was validly elected. The argument is that he was disqualified under <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s44.html">Section 44(v)</a> of the Constitution for holding an indirect pecuniary interest in an agreement with the Public Service. This matter concerns whether Day had such an interest in a contract with the Commonwealth. </p>
<p>The facts involved remain unclear, and it is hard to judge whether or not a breach of s 44(v) is likely to have occurred. It is especially difficult because his interest in the agreement was only indirect. The one High Court authority on the issue, <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1975/22.html">the Webster case</a>, is a judgment of a single judge back in 1975. </p>
<p>As it is quite old and has been the subject of much criticism, it is unknown whether the High Court would follow it or develop different criteria for determining what is a disqualifying pecuniary interest.</p>
<h2>Why does it make a difference, given that Senator Day has resigned from the Senate?</h2>
<p>Normally such cases are brought for the purpose of removing a person from the Senate. </p>
<p>The answer in this case is that it makes a difference in relation to who is chosen to replace him in the Senate. This is a particularly sensitive issue in a Senate that the government does not control.</p>
<p>If Senator Day was validly elected on July 2, 2016 and then resigned his seat in November 2016, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s15.html">section 15</a> of the Constitution would apply. It states that where the place of a senator becomes vacant before the expiration of his term of service, his replacement is chosen by the houses of parliament of the state from which he was chosen, in a joint sitting. So the South Australian parliament would choose Senator Day’s replacement. </p>
<p>Section 15 was amended in 1977 to make it clear that the South Australian parliament can only choose a person from the same party to which the outgoing senator belonged at the time of his or her election. The rationale is that if the people vote for a representative of one party, the replacement of that senator should come from the same party. So it would be up to the Family First party to nominate their choice of senator, which the South Australian parliament, in a joint sitting, would then formally choose.</p>
<p>During the period of the Whitlam government, there had been some fudging of the convention about appointing a person from the same party. For example, the Queensland Parliament <a href="http://www.abc.net.au/stateline/qld/content/2005/s1504841.htm">appointed Albert Field</a> to fill a Senate seat vacated by a Labor member. Field was technically a member of the Labor Party, but was opposed to the Whitlam government. </p>
<p>In order to avoid this type of problem, the Constitution was amended so that if a person is appointed from the relevant political party, but then expelled from that party before taking up his or her seat, he or she “shall be deemed not to have been so chosen”. This means that the party effectively chooses a senator’s replacement where there is a casual vacancy.</p>
<h2>What if Senator Day was not validly elected?</h2>
<p>If Senator Day was never validly elected at the July 2016 election, then it is more complicated. In the past, the High Court has resolved the issue by ordering a re-count of the vote, distributing the votes as if the disqualified senator did not exist. This usually means that it is the next person on the party’s ticket who is elected. On this basis, the second person on the Family First ticket in South Australia would most likely be elected. </p>
<p>This is complicated on this occasion, however, by two factors. First, it is possible that there are enough “below the line” votes for Senator Day personally that then went to different candidates, rather than the second Family First candidate, to alter the outcome. </p>
<p>Secondly, there would be doubts about the validity of the “above the line” votes for Family First, because a party requires two candidates to register its ticket above the line. If Day was disqualified, this would mean there was only one. It would therefore be arguable that all the above the line votes for Family First would not be counted, with preferences instead being passed on to the candidates of the next party preferenced on each ballot paper. </p>
<p>This could result in Labor or One Nation picking up Senator Day’s seat. As the Senate <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">voting laws have recently changed</a> to an optional preferential above the line system – a system that <a href="https://theconversation.com/high-court-unanimously-rejects-challenge-to-senate-voting-reform-59170">Senator Day challenged</a> in the High Court – we have no relevant precedent as to how his disqualification would affect the recount in these circumstances.</p>
<p>The time for challenging the validity of the election of a candidate has now expired. However, the houses of parliament can still refer to the High Court, sitting as a Court of Disputed Returns, any question concerning the validity of the election of a senator or member. </p>
<p>The government proposes to ask the Senate to make such a referral on Monday. If the Senate agrees, it will be up to the High Court to decide these difficult constitutional issues. One way or the other, the outcome will have an impact upon the composition of the Senate.</p>
<p><em>This article has been corrected to accurately reflect the pecuniary interest issue.</em></p><img src="https://counter.theconversation.com/content/68046/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>Changes to Senate voting laws and the particular case of Senator Bob Day make for an unprecedented constitutional tangle, and one that will change the make-up of the Senate.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/633072016-08-05T04:37:13Z2016-08-05T04:37:13ZSo, how did the new Senate voting rules work in practice?<figure><img src="https://images.theconversation.com/files/133185/original/image-20160805-501-k16skc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In March, the government passed sweeping changes to the way Australians elect their senators.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Australia has its <a href="https://theconversation.com/explainer-whos-who-on-the-new-senate-crossbench-62216">new Senate</a>. The Coalition will hold 30 seats, Labor 26, the Greens nine, and there will be 11 other crossbench senators.</p>
<p>In March, the government passed <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">sweeping changes</a> to the way Australians elect their senators. <a href="http://www.prsa.org.au/history.htm#gvt">Group voting tickets</a>, whereby voting “1” above the line meant your preferences were those already lodged by the party you voted “1” for, were abolished. This returned control of preferences to individual voters.</p>
<p>When debating the changes, which Labor and other minor and micro parties opposed, some senators made predictions about the make-up of the new upper house. Labor’s <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F120cdb07-6373-4ce4-8fe5-c2c4cfd5c68c%2F0037%22">Jacinta Collins</a> said:</p>
<blockquote>
<p>The principal beneficiary of this new voting system will be the Liberal Party … The Liberal Party’s true motivation is to achieve lasting electoral dominance in the Senate for the conservative parties and, over time, a lasting Senate majority in its own right.</p>
</blockquote>
<p>In fact, at the 2016 election the Coalition lost a net three Senate positions. It now has its lowest level of representation in the upper house in 70 years.</p>
<p>In February, Labor senator <a href="http://www.abc.net.au/pm/content/2016/s4412096.htm">Stephen Conroy</a> said:</p>
<blockquote>
<p>The stated aim of these reforms is to wipe out all of the minor party players. On everybody’s calculations, they’ll all be replaced by either a Liberal coalition, a Green or a Labor senator.</p>
</blockquote>
<p>In fact, the number of non-Green crossbench senators has increased from eight to 11.</p>
<p>Conroy <a href="http://www.abc.net.au/pm/content/2016/s4412096.htm">also said</a>:</p>
<blockquote>
<p>… over three million Australians’ votes will be discarded. They’ll be exhausted; they’ll be not used to calculate who’s actually going to get into the Senate.</p>
</blockquote>
<p>In other words, Conroy claimed more than 20% of Australians would vote and preference candidates who would be excluded before the Senate count was completed. In fact, the incidence of exhausted ballots was less than 6%, not including exhaustions from the last defeated candidate. In other words, over 94% of votes were cast either for elected candidates or the one last defeated candidate.</p>
<p>The new Senate is representative of the wide range of views in Australia – and far more so than the House of Representatives, as the table below indicates:</p>
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<p>The 18.7% of people who voted for “Others” includes many supporters of small parties who preferenced larger parties ahead of other parties. An example would be a supporter of the Arts Party who preferenced one of the major parties ahead of a party like the Shooters, Fishers and Farmers. It was never the case that all who voted for the smaller parties would preference another smaller party candidate ahead of any of the major parties.</p>
<p>After the final Senate results were declared, Labor leader Bill Shorten <a href="http://www.abc.net.au/news/2016-08-04/final-senate-make-up-confirmed-with-11-crossbenchers/7689788">said</a>:</p>
<blockquote>
<p>The presence in such numbers of One Nation in the Senate is a direct result of Mr Turnbull and Mr Di Natale’s action in terms of their so-called electoral reform. </p>
</blockquote>
<p>There is no evidence that this is so. Pauline Hanson would have been elected under the previous electoral rules; she received more than one quota. The presence of other senators from her party is due to large numbers of people voting for, and giving preferences to, One Nation. </p>
<p>And, under the previous system, One Nation senators may well have been elected because other smaller parties may have preferenced One Nation ahead of other parties.</p>
<p>The vast majority of voters are represented in the Senate by someone they voted for, or directed their preferences to. The table below shows the percentage of votes that contributed to the election of senators in each of the six states:</p>
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<p>This table is based at the stage when just one defeated candidate remained in the count: this is the fairest way of calculating these figures.</p>
<p>An even higher percentage of ballots contributed to the election of senators. This is because when a candidate is elected, the votes not needed for their election – the “surplus” – are transferred to the candidate next preferred by the voter, but at a lower vote value (the <a href="http://www.prsa.org.au/gregoryj.htm">transfer value</a>).</p>
<p>In South Australia, for example, 269,824 people voted for the ALP above the line and those preferences ended up with the unsuccessful fourth Labor candidate, Anne McEwen. Around 86% of the value of each vote cast for Labor above the line counted to elect the first three candidates, but the remaining 14% of the value of those votes ended up with the unsuccessful last candidate.</p>
<p>Under the previous Senate voting system, all preferences had to be expressed below the line. This meant that, in each of the six states, all 12 senators elected would have a full quota of votes, and at least 12/13 (92.31%) of the votes would contribute to the election of a senator. </p>
<p>So, how did it work this time? Overall, 90.02% of the votes contributed to the election of senators. The difference between that and the 92.31% figure cited above is the extent of exhaustion.</p>
<p>What is exhaustion? Suppose a Tasmanian voted for the following six parties, then left the rest of the ballot paper blank.</p>
<p>1 Citizens Electoral Council</p>
<p>2 Arts Party</p>
<p>3 Voteflux</p>
<p>4 Australian Liberty Alliance</p>
<p>5 Science Party</p>
<p>6 Renewable Energy Party</p>
<p>The candidates for those parties all received few votes and were all excluded from the count early, meaning this Tasmanian voter’s ballot became exhausted, as it indicated no further preferences and thus could not further influence the result.</p>
<p>Much more typically, exhausted ballots come at the end of the count. In Tasmania, for example, 29.5% of all the exhausted ballots were from the surplus of Liberal candidate David Bushby. At the point in the count when his surplus was distributed, three candidates remained: Catryna Bilyk (Labor), Nick McKim (Greens) and Kate McCulloch (One Nation). The value of Bushby’s suplus was distributed as follows:</p>
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<p>Surely it is no surprise that 2,816 of those Liberal supporters had no desire to support any of the three remaining candidates. Voters made deliberate choices either to express preferences or not, according to what they believe.</p>
<p>Another important feature of this Senate election, which has not happened for at least 60 years, was the election of a candidate out of order on their party’s ticket. Despite being listed sixth, Labor’s Lisa Singh was elected ahead of the fourth candidate down the column, Catryna Bilyk. The fifth candidate on the ticket, John Short, was unsuccessful. That happened because 26.8% of Labor voters marked their votes below the line, and 18.2% of those gave their first preference to Singh.</p>
<p>The concerns raised about the changes to the Senate system, and the predictions of loss of representation, did not eventuate. Rather, the new system has worked to produce a house of parliament much more representative of the range and balance of Australians’ political views than the House of Representatives.</p>
<p><iframe id="tc-infographic-193" class="tc-infographic" height="800" src="https://cdn.theconversation.com/infographics/193/ad552b7bc32776436af08ccde38e8f64f716ba81/site/index.html" width="100%" style="border: none" frameborder="0"></iframe></p><img src="https://counter.theconversation.com/content/63307/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Morey is the National Secretary of the Proportional Representation Society of Australia. He is a recipient of an Australian Research Council grant, but not for research related to this article,</span></em></p>The new Senate is representative of the wide range of views in Australia – and far more so than the House of Representatives.Stephen Morey, Senior Lecturer, Department of Languages and Linguistics, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/578182016-06-20T01:46:36Z2016-06-20T01:46:36ZElection explainer: how does the Senate count work?<figure><img src="https://images.theconversation.com/files/122926/original/image-20160518-9476-168gec5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The best way to ensure your vote contributes as much as it can to the election of senators is to number as many squares as you can.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>At a <a href="https://theconversation.com/election-explainer-what-does-it-mean-that-were-having-a-double-dissolution-election-56671">double-dissolution election</a>, each state will elect 12 senators, while the Northern Territory and the Australian Capital Territory will each elect two.</p>
<p>Following the Turnbull government’s <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">recent changes</a>, Australia has new rules for electing senators. How will they work in practise?</p>
<h2>What are the basic rules?</h2>
<p>The basic principles of electing senators are:</p>
<ul>
<li><p>we have one vote, and all votes have the same value;</p></li>
<li><p>our votes are preferential, and we decide whether to fill in all the boxes or only some of them; and</p></li>
<li><p>because of the preferences we express, <a href="https://en.wikipedia.org/wiki/Single_transferable_vote">our vote is transferable</a>. So, if the number one preference isn’t used to elect a senator, then the number two preference will be used, and if not that then our number three and so on.</p></li>
</ul>
<p>You can choose to vote below the line or above the line. Both are preferential but there is a difference. If you vote above the line the party you support decides the order of preferences for the candidates within that party. Voters will be asked to number at least six boxes above the line.</p>
<p>However, if you vote “1” above the line, your vote will still be formal – but preferences will only be distributed to other candidates within that party group. </p>
<p>If you vote below the line, you decide which candidates you support in which order. If you vote below the line you will be asked to number at least 12 boxes, but your vote will still be formal even if you only number six.</p>
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<figcaption><span class="caption">New Senate voting rules explained.</span></figcaption>
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<h2>How do senators get elected?</h2>
<p>To get elected, a candidate needs to receive a quota.</p>
<p>The quota is calculated as the number of votes cast, divided by the number of candidates plus one, then one is added to that total.</p>
<p>Let’s say there are 1.3 million votes cast in one of the states. In a double dissolution, this number is divided by 13 (12 positions to be elected plus one). This equals 100,000. Adding one means the quota will be 100,001. </p>
<p>Out of 1.3 million votes, 12 candidates can receive 100,001 votes – and what is left over (99,988) isn’t a quota, and isn’t enough to be elected.</p>
<p>If we had a Senate result in which 12 candidates each received 100,001 votes, then all 12 would be elected. But that is very unlikely to happen. Some individual candidates (like Nick Xenophon) or parties (Liberal/National, Labor, Greens) get a lot more votes than one quota – and some get a lot fewer.</p>
<h2>So, how does the count work?</h2>
<p>All the first preferences are counted – those which have number one for each candidate (individuals below the line and the first named candidate of the parties above the line).</p>
<p>Any candidates who have reached the quota are declared elected. If they received more votes than the quota, they have what is termed a surplus. Because this is a preferential system, the surplus is then distributed to the number two of the elected candidates, but at a reduced value.</p>
<p>Suppose the candidate elected was called Brown (Liberal) and received a total of 250,000 votes. Of these, 225,000 were above the line and are deemed to preference the number two on the Liberal list – Smith. The other 25,000 votes, made below the line, preference a range of different candidates.</p>
<p>The quota was 100,001, so Brown’s surplus is total number of votes minus the quota. This is equal to 149,999. His preferences will be passed on at the value of 149,999 divided by 250,000, or 0.599. This figure, 0.599, is called a transfer value. Each of the 250,000 preferences will then be counted and passed on at the transfer value of 0.599 of a vote each.</p>
<p>This way, the preferences of all of those who voted one for Brown are used up equally. This will be enough to give a quota to Smith, who, in addition to the 500 votes he received below the line, will get 225,000 of Brown’s votes at the value of 0.599 – which is 134,775.</p>
<p>That gives Smith 139,775 – a quota. Smith also has a surplus, which is calculated and distributed in a similar way.</p>
<p>Once all of the candidates who had a quota after first preferences have been elected and their surpluses distributed, and the same has happened to any candidates who reached a quota as a result of the distribution of surpluses, the count will now proceed to exclusions. This is where the candidate who has the fewest votes will be excluded, and their second preference will now receive the full value of that vote.</p>
<p>Suppose, at this point, there were ten senators elected – five Liberals, four Labor and one from the Greens, and consequently 1,000,010 votes have been used. </p>
<p>Let’s also suppose the following candidates have this number of votes after the distribution of preferences to this point:</p>
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<p>Since nobody has a quota, the candidate with the lowest number of votes remaining is excluded and their next available preference counted. </p>
<p>In this example Fitch (Liberal) has the lowest number of votes remaining, and it may be that some people voted Fitch one, Brown two – but Brown is already elected, so it is the next preference that is cast for a candidate that is not yet elected (or excluded) that will be counted.</p>
<p>At this point in the count most of those being excluded are candidates with very few votes from parties that have other candidates with more votes, so maybe most of Fitch’s preferences will end up with Green. This process goes on until there are two more candidates with quotas out of the remaining candidates listed.</p>
<p>So, it might be that all the Hemp Party candidates are excluded, and most of their voters preferenced Muir. Then the Shooters Party also mostly preferenced Muir, then the remaining Liberal candidates might be excluded preferencing Family First, and then the remaining Labor candidate preferencing Muir. This would be enough to elect Muir.</p>
<p>Who is elected to the final position, between Green and Family First, would then depend of the preferences of Muir’s surplus.</p>
<p>However, because voters only need to number one to six above the line and one to 12 below the line, it may happen that your vote is exhausted. Suppose we are near the end of the count and these are the figures:</p>
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<hr>
<p>Let’s suppose that most of the exhausted votes came from people who voted one for Labor but did not fill in their preferences beyond the minimum, and consequently were exhausted. And let’s suppose that Muir’s surplus mostly exhausts, but a small number go to Hillier and a few to Hills. Then, Hills (Family First) will be elected with less than a quota.</p>
<p>Perhaps if all of the Labor voters had numbered their ballot all the way to the end – and supported the Greens ahead of Family First – a second Greens senator would have been elected.</p>
<p>The best way to ensure your vote contributes as much as it can to the election of senators is to number as many boxes as you can.</p><img src="https://counter.theconversation.com/content/57818/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Morey is the National Secretary of the Proportional Representation Society of Australia. </span></em></p>Following the Turnbull government’s recent changes, Australia has new rules for electing senators. How will they work in practise?Stephen Morey, Senior Lecturer, Department of Languages and Linguistics, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/608382016-06-09T15:02:55Z2016-06-09T15:02:55ZConfusion about Senate rules could produce winners with small votes: Australia Institute<p>Large numbers of people may just number one box for the Senate, which would mean the last seats in a state could be won with low primary votes, according to an analysis by the Australia Institute.</p>
<p>Polling done for the progressive think-tank found one-third of voters (33%) believed the minimum number of boxes a voter had to number when voting above the line was one. Only 29% said people had to number at least six boxes. Some 9% said every box had to be numbered; 5% said at least 12. Nearly one-quarter (24%) did not know.</p>
<p>Voters are supposed to number at least six boxes in order of preference for parties or teams above the line, although a vote for just one box will still be counted. Under the old system only one box had to be marked.</p>
<p>Under half (48%) said they intended to vote above the line. This is much lower than the overwhelming proportion normally voting above the line. Only 14% said they would vote below the line, where individual candidates are listed, and a large 34% did not know.</p>
<p>The poll of 1,437 voters was done from May 23 to June 3 through Research Now, asking people about their Senate voting as well as their House of Representatives vote.</p>
<p>The Australia Institute’s director, Ben Oquist, said that while Senate polling was unreliable, reading these results in conjunction with published House of Representatives polls suggested the Coalition would struggle to hold some of its Senate seats.</p>
<p>The results indicate very many people do not yet understand the new Senate voting rules, which were passed shortly before the parliament rose. The Australian Electoral Commission is promoting information to tell people about the new system but there is little time to do so, especially with pre-polling starting next week.</p>
<p>If a large number of people just voted “1” above the line it would mean there would be a substantial exhaustion of votes. But the unknown is to what degree the instruction on the ballot to number one to six will limit the premature exhaustion of votes. A vote is exhausted when a voter’s choice is eliminated in the count and there is not an expressed preference for the vote to then go on to.</p>
<p>Oquist said while the votes of those who just marked “1” above the line would be counted, “it may well be effectively a ‘wasted’ vote” because it would not flow on to preferences.</p>
<p>“The low level of understanding of the new system means last seats could be won with a fraction of a quota,” he said.</p>
<p>The poll had the Coalition on a primary vote of 38% for the House of Representatives, with Labor on 35%, the Greens 11% and independent/other on 16%. Asked who they would vote for in the Senate, the results were Liberals 34%, Labor 33%, Greens 12%, Nationals 2%, Palmer United Party 0%, Jacqui Lambie Network 1%, Glenn Lazarus Team 0%, Nick Xenophon Team 4%, Pauline Hanson’s One Nation 5%, independent/other 8%.</p>
<p>Oquist said Pauline Hanson “looks set to win in Queensland” and Nick Xenophon could pick up seats outside South Australia. Independent Jacqui Lambie was likely to be returned. “There are other wildcards like Lazarus and even the chance of a second Greens (Andrew Bartlett) winning in Queensland,” he said.</p>
<p>His estimates of the new Senate numbers were 30-35 Coalition senators, 25-28 from Labor, nine or ten Greens, three to six Nick Xenophon Team, plus others.</p>
<p>“All up, this could mean a Senate where a returned Coalition government couldn’t pass legislation without either Hanson’s vote or the Greens – when Labor oppose bills,” Oquist said.</p><img src="https://counter.theconversation.com/content/60838/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many people do not yet understand the new Senate voting rules, meaning many votes could be wasted at the upcoming federal election.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/599002016-06-05T20:12:12Z2016-06-05T20:12:12ZAided by the new Senate rules, Nick Xenophon should have a happy election night<figure><img src="https://images.theconversation.com/files/124748/original/image-20160601-1946-1h79p6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">According to polling, Nick Xenophon and his team are on track to secure about three Senate spots.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>There are two election battles going on ahead of polling day on July 2. One is for executive power in the contest for the House of Representatives. The other is for the Senate, which is elected under a <a href="http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/pops/%7E/link.aspx?_id=DB8FD989ADD34452AF9F0792790FF7DF&_z=z">system of proportional representation</a> that utilises the Single Transferable Vote (STV). </p>
<p>To win a Senate place at a double-dissolution election, a candidate needs to secure 7.7% of the vote cast in the candidate’s state. This sounds like a trifling amount, but in a state like New South Wales, 7.7% equates to 336,963 votes. This, by the way, is the total number of voters in Tasmania, where, to secure a Senate seat, a candidate needs only 25,945 votes.</p>
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<hr>
<p>Trying to predict Senate outcomes is difficult at the best of times, but the 2016 contest for the upper house is <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">even more unknown</a> thanks to the abolition of the group voting ticket, and its replacement by what is effectively optional preferential voting. </p>
<p>Nobody knows how voters will respond to the <a href="http://aec.gov.au/Voting/How_to_vote/Voting_Senate.htm">Australian Electoral Commission’s instructions</a> on filling in Senate ballots. This means there is great uncertainty about how many ballots will end up counting as preferences.</p>
<p>The best prediction that can be made is that, in order to win a seat, candidates will have to rely on achieving a quota or close to a quota on primary votes alone. The days of a Ricky Muir winning a seat because preferences boosted an otherwise miniscule primary vote are probably over.</p>
<p>Assuming that seats will most likely go to party tickets getting enough primary votes to achieve the requisite quota, only five parties are guaranteed representation. Those are Labor, Liberal, Nationals, the Greens, and <a href="https://nxt.org.au/">Nick Xenophon’s new party</a>. The latter’s support in South Australia should see it secure at least two – possibly three or maybe four – seats.</p>
<p>Of the rest, the only former senator who has a reasonable chance of being returned is <a href="http://lambienetwork.com.au/">Jacqui Lambie</a> in Tasmania. It is quite conceivable that a high-profile individual could get the 26,000 votes needed to secure a seat in a state with a history of voting for prominent individuals ahead of party tickets. </p>
<p>There is much less certainty about the fate of the others. <a href="http://senatorlazarus.com/">Glenn Lazarus</a> and <a href="http://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=250045">Dio Wang</a> were elected under the auspices of the Palmer United Party, which has since imploded.</p>
<p>Pauline Hanson is <a href="http://www.smh.com.au/federal-politics/federal-election-2016/election-2016-pauline-hanson-quietly-confident-of-returning-to-parliament-after-20-years-20160524-gp2sbl.html">running for</a> a Queensland Senate spot, which could be very interesting. </p>
<p>The mystery of why so many people voted for the Liberal Democratic Party (LDP) in New South Wales in 2013 has not really been solved. But the inclusion of party emblems on the ballot paper as part of the recent Senate voting reforms suggests the LDP’s David Leyonhjelm was the beneficiary of mistaken identity and having pole position on the 2013 ballot paper. It is unlikely any of these happy coincidences will happen again.</p>
<p>Given the Coalition will not win an upper house majority, the next most likely scenario is that Xenophon and his party members will hold the balance of power in the Senate. Both major party leaders would probably be comfortable with this outcome.</p>
<p>For all his positioning on populist issues, Xenophon has great experience in the ways of upper house politics, especially with regard to negotiating with the major parties on important legislation.</p>
<p>Xenophon’s track record as a crossbench senator has always been characterised by trying to use the upper house to modify bills rather than simply defeat them. And his political persona has none of the volatility associated with a Clive Palmer or the ideological rigidity of Tasmania’s Brian Harradine, who held the balance of power for a time when John Howard was prime minister.</p>
<p>The unknown factor in this, however, is how Xenophon will fare as the leader of a political party with a parliamentary wing. The history of minor parties put together quickly by prominent characters ahead of a general election has not been a happy one.</p>
<p>The <a href="http://trove.nla.gov.au/work/191516801?selectedversion=NBD53338372">Nuclear Disarmament Party</a> was created ahead of the 1984 election, and imploded soon after. <a href="http://www.onenation.com.au/">Pauline Hanson’s One Nation</a> did not survive long after its impact on the 1998 Queensland state and federal elections, and the implosion of the <a href="https://palmerunited.com/">Palmer United Party</a> has already been alluded to.</p>
<p>The challenge for Xenophon will not necessarily be about winning Senate seats, but keeping his party together in the transition from being a support mechanism for a charismatic leader to being a parliamentary party.</p>
<p>All of this assumes the Nick Xenophon Team will hold the balance of power in the Senate, and this is by no means a certainty. Any candidate from a party other than Labor and the Coalition could be pivotal to the balance of power in the Senate. A Labor-Green majority cannot be ruled out either. </p>
<p>The chances of another minor party being in such a position of power is remote, not least because of the new Senate voting rules that do away with preference harvesting. This is a reform that Xenophon himself was instrumental in expediting, showing once again how effectively he can merge his political self-interest with declarations that he seeks to serve the national interest.</p>
<p><iframe id="tc-infographic-196" class="tc-infographic" height="900" src="https://cdn.theconversation.com/infographics/196/cc8dfeb1b534ed503410f650812ccdfb0f0a2ca6/site/index.html" width="100%" style="border: none" frameborder="0"></iframe></p><img src="https://counter.theconversation.com/content/59900/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nick Economou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Senate reforms and a double-dissolution election means that it is difficult to predict who will be sitting in the upper house after July 2. But you can count on Nick Xenophon being there.Nick Economou, Senior Lecturer, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/602512016-06-01T02:29:46Z2016-06-01T02:29:46ZSpeaking with: ‘Poll Bludger’ William Bowe on the election races to watch<figure><img src="https://images.theconversation.com/files/124547/original/image-20160531-13769-1xj4mbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Tracey Nearmy</span></span></figcaption></figure><p>In this podcast, University of Western Australia political analyst Natalie Mast speaks with “Poll Bludger” William Bowe about the election campaign so far. The conversation focuses on the latest polling and whether there is evidence of a nationwide swing large enough to unseat the Coalition government. </p>
<p>They touch on the possible impact state issues – particularly in Western Australia and South Australia – will have on the election. </p>
<p>William also speaks about his recent modelling of possible outcomes for the Senate. The upper house is not only facing a double-dissolution election but a new method of voting. </p>
<hr>
<p><em><a href="https://itunes.apple.com/au/podcast/speaking-with.../id934267338">Subscribe</a> to The Conversation’s Speaking With podcasts on iTunes, or <a href="http://tunein.com/radio/Speaking-with---The-Conversation-Podcast-p671452/">follow</a> on Tunein Radio.</em></p>
<p><strong>Additional Audio:</strong></p>
<ul>
<li><p>Channel Ten, <a href="https://www.youtube.com/watch?v=gvcpXnrMARI">1998 Australian Federal election coverage</a></p></li>
<li><p>Channel Ten, <a href="http://www.adelaidenow.com.au/news/south-australia/south-australia-premier-jay-weatherill-says-decision-to-build-12-frenchdesigned-submarines-in-adelaide-will-kickstart-jobs-immediately/news-story/4b6ac2e29ac2578e3d6b030f2781be2e">Eyewitness Newsbyte 26 April 2016</a></p></li>
<li><p>Liberal Party of Australia, <a href="https://www.youtube.com/watch?v=BRYERUp5pPU">Our Plan for a Strong New Economy</a></p></li>
<li><p>Youtube user: Voltscomissar, <a href="https://www.youtube.com/watch?v=J8M6iqSqKRM">Adam Bandt victory speech in full. Re-elected MHR for Melbourne.</a></p></li>
<li><p>Australian Electoral Commission, <a href="http://video.news.com.au/v/455562/AECs-senate-voting-education-campaign">Senate voting education campaign</a></p></li>
</ul>
<p><strong>Music</strong></p>
<ul>
<li><p>Free Music Archive - Blue Dot Sessions <a href="http://freemusicarchive.org/music/Blue_Dot_Sessions/The_Contessa/Wisteria">Wisteria</a> </p></li>
<li><p>Free Music Archive - Blue Dot Sessions, <a href="http://freemusicarchive.org/music/Blue_Dot_Sessions/The_Contessa/When_The_Guests_Have_Left">When the guests have left</a> </p></li>
<li><p>Free Music Archive - Jon Luc Hefferman, <a href="http://freemusicarchive.org/music/Jon_Luc_Hefferman/Production_Music_2/Analog_1208">“Analog”</a></p></li>
<li><p>Free Music Archive - Circus Marcus, <a href="http://freemusicarchive.org/music/CIRCUSMARCUS/Vous_tes_quelquun_de_terriblement_absent">“La tapa del dominigo”</a></p></li>
<li><p>Free Music Archive - Circus Marcus, <a href="http://freemusicarchive.org/music/CIRCUSMARCUS/Vous_tes_quelquun_de_terriblement_absent">“La tapa del sábado”</a></p></li>
<li><p>Free Music Archive - Superbus, <a href="http://freemusicarchive.org/music/Superbus/Debut/02-superbus-dramaticmp3">“Dramatic”</a></p></li>
<li><p>Free Music Archive - Dave Depper, <a href="http://freemusicarchive.org/music/Dave_Depper/Compositions_3/Wholesome_7">“Wholesome 7”</a></p></li>
<li><p>Free Music Archive - Dave Depper, <a href="http://freemusicarchive.org/music/Dave_Depper/Compositions_3">“Swagger 2”</a></p></li>
</ul><img src="https://counter.theconversation.com/content/60251/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Natalie Mast is chair of The Conversation's editorial board.</span></em></p>Natalie Mast speaks with 'Poll Bludger' William Bowe about how the election campaign has gone so far and what the Senate might look like as a result of changes to the voting method.Natalie Mast, Associate Director, Performance Analytics, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/594722016-05-18T19:44:42Z2016-05-18T19:44:42ZSeats on the line as Labor and the Greens do a difficult preference dance<figure><img src="https://images.theconversation.com/files/122931/original/image-20160518-9509-ktujll.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Greens leader Richard Di Natale (right) and Greens candidate for Grayndler Jim Casey are eyeing off the inner-Sydney seat.</span> <span class="attribution"><span class="source">AAP/Paul Miller</span></span></figcaption></figure><p>Before the 2007 election, Kevin Rudd vowed to <a href="http://www.smh.com.au/federal-politics/mind-game-delivers-a-win-for-pm-20090625-cy56.html">“mess” with John Howard’s mind</a>. He did and it worked.</p>
<p>Now, the government is trying to repeat the trick with Bill Shorten, and the Greens are their handmaidens. Talk of preference deals is the Coalition’s chief weapon, but so is Labor division over border protection, propaganda about a Labor-Green coalition, and Green opportunism on penalty rates.</p>
<p>At immediate risk for Labor are a number of inner-city seats, especially in Melbourne. The danger for the Greens are unintended consequences flowing from their flirtation with preference deals with the Coalition. It might just work too well, not merely damaging Labor, but also reducing the Greens’ overall influence and impact in the next parliament.</p>
<p>The Greens hold the seat of Melbourne courtesy of Liberal preferences in 2010 and incumbency at the last election. The Labor seats of <a href="http://www.abc.net.au/news/federal-election-2016/guide/batm/">Batman</a> and <a href="http://www.abc.net.au/news/federal-election-2016/guide/will/">Wills</a>, where Labor’s vote fell below 50% at the 2013 election, are at serious risk of following the same pattern on July 2 if the Liberals direct preferences to the Greens.</p>
<p>According to ABC psephologist Antony Green, the Greens could not win either seat without Liberal preferences – unless their primary vote overtakes Labor’s.</p>
<p>That is possible, but unlikely. It is even less likely in another seat being targeted by the Greens – the electorate of <a href="http://www.abc.net.au/news/federal-election-2016/guide/gray/">Grayndler</a> in Sydney, held by Labor’s Anthony Albanese. His primary vote was in the high 40s in 2013 and the Greens were outpolled by the Liberals.</p>
<p><a href="http://www.abc.net.au/news/federal-election-2016/guide/mpor/">Melbourne Ports</a> is another interesting but different case. Labor’s Michael Danby was outpolled by the Liberals at the last election, but retained the seat on the back of Green preferences. According to Green, a 6% switch in primary votes between Labor and the Greens would see the seat fall to the Greens – or the Liberals, depending on who preferences whom.</p>
<p>Just to be clear, no Liberal seats are at risk. The Coalition gains by putting Labor under pressure in seats it has held for decades, in some cases since federation. Liberal preferences would hand Batman and Wills to the Greens.</p>
<p>According to Liberal strategists, the threat to Labor in those two seats is already forcing them to commit hundreds of thousands of dollars to defend a pair of electorates it could once take for granted. That means less money to spend on seats Labor needs to win if it is to return to government.</p>
<p>This is already an uphill task, given that Labor needs to gain 20 seats nationwide to topple a first-term government – a feat not achieved federally since 1931. Given the current state of the polls, the best Labor can expect is another hung parliament. But that prospect creates tactical problems for Shorten, not the Coalition.</p>
<p>First, it would mean that whoever emerged as prime minister would have to assure the governor-general that he had the confidence of the House of Representatives. Shorten has recoiled from the Greens’ suggestions of another alliance, like that negotiated by Julia Gillard, like Dracula from a stake.</p>
<p>However, talk of any kind of agreement to guarantee passage of money bills is sufficient for the Coalition to raise the spectre of the last hung parliament with the memory of Gillard and Bob Brown joined at the hip, surrounded by rancour and dysfunction.</p>
<p>Second, it makes Labor look more left-wing than Shorten would like, as does mere talk of Labor being dependent on Green preferences to hold Batman, Wills and Grayndler among others.</p>
<p>The votes Shorten needs to attract are in the centre, winning primary votes at the expense of the Coalition. He cannot win more votes on the left. The less centrist his appeal, the fewer votes he will win from the government.</p>
<p>Shorten is caught in a vice between Liberal claims that he is beholden to the Greens and Green suggestions that Labor has lost its moral compass. On that score, the Coalition has now produced dirt sheets on at least seven Labor candidates, quoting past statements opposing turnbacks and offshore processing of asylum seekers. Undoubtedly, we have not heard the end of this.</p>
<p>The government argues this shows what Labor really thinks; that a Shorten prime ministership would again see boatloads of asylum seekers making it to Australian waters. For Greens voters, it is a daily reminder of Labor’s lack of compassion.</p>
<p>It is a similar story with the Greens’ opportunism on weekend penalty rates. Shorten is pointing out, quite reasonably, that legislating for double time on Sundays – as Greens leader Richard Di Natale is proposing – could quite readily be undone by a Coalition government.</p>
<p>On the other hand Shorten is committing a Labor government to a submission to Fair Work Australia in support of maintaining penalty rates. That ought to have considerable influence over whatever decision the independent commission makes.</p>
<p>The Greens, however, depict themselves as the only friends the workers have left, and portray Shorten as betraying his union roots. Another win for the Coalition.</p>
<p>For all that, it is just possible that the Greens could play this game too successfully.</p>
<p>Changes to the Senate voting arrangements mean they will lose one or possibly two of their ten seats. On the other hand, rightist independent Nick Xenophon might just win four seats in South Australia. Family First’s Bob Day might retain his seat, as might the Liberal Democrats’ David Leyonhjelm. That would give the crossbench a more conservative tinge, reducing the power of the Greens.</p>
<p>In the lower house, competition with Labor might produce more Green MPs. But downward pressure on Labor’s vote nationally might ensure the Coalition’s majority.</p>
<p>In short, it could mean greater numbers for the Greens in the lower house, but less influence and fewer senators. This would in turn mean the continuation of Tony Abbott’s climate-change policy and pressure from the business community for further industrial relations changes, not just the abolition of penalty rates.</p>
<p>Careful what you wish for.</p><img src="https://counter.theconversation.com/content/59472/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jim Middleton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With the election result almost certain to be close, preferencing will play a key role, leaving the progressive parties in particular in a difficult bind.Jim Middleton, Vice Chancellor's Fellow, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/591702016-05-13T03:39:50Z2016-05-13T03:39:50ZHigh Court unanimously rejects challenge to Senate voting reform<figure><img src="https://images.theconversation.com/files/122405/original/image-20160513-16422-1yq20dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family First senator Bob Day unsuccessfully challenged the government's changes to the way senators are elected.</span> <span class="attribution"><span class="source">AAP/Sam Mooy</span></span></figcaption></figure><p>In a <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2016/20.html">unanimous judgment</a>, the High Court on Friday crushed Family First senator Bob Day’s High Court challenge to the recent Senate voting reforms. </p>
<p>The court regarded none of Day’s arguments as having any merit. It dismissed them as “untenable” or failing at their very threshold.</p>
<h2>Remind me again, what are the changes?</h2>
<p>The <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">voting changes</a> to which Day objected provide for optional preferential voting both above the line and below the line in Senate elections. </p>
<p>Under the previous voting system, if an elector marked “1” above the line for a party, the party then determined how the vote was distributed to all the candidates on the ballot paper. If electors voted below the line, they had to number sequentially every candidate according to their preferences. This could amount to more than 100 candidates. </p>
<p>The consequence was that about <a href="http://blogs.abc.net.au/antonygreen/2014/04/below-the-line-preference-flows-at-the-2013-wa-senate-election.html">95% of people</a> voted above the line. This allowed parties to determine the flow of their preferences.</p>
<p>First in New South Wales and then federally, people began to <a href="http://www.abc.net.au/news/2013-09-11/green-hand-the-power-of-preferences-back-to-the-people/4951020">manipulate this voting system</a>. They created microparties with catchy names to harvest votes, and did deals with other parties regarding preferences, so that they could be elected even though they had a very small proportion of the primary vote.</p>
<p>The consequence was that people with <a href="http://blogs.abc.net.au/antonygreen/2013/09/the-preference-deals-behind-the-strange-election-of-ricky-muir-and-wayne-dropulich-.html">negligible public support</a> were being elected on the preferences of voters who often had polar-opposite political views to the candidate their vote had actually caused to be elected.</p>
<p>In NSW, after the infamous 1999 “tablecloth” ballot paper, the Labor government changed the voting system for the Legislative Council to allow optional preferential above-the-line voting. In 2016, it was a Coalition government at the Commonwealth level that adopted the same approach. </p>
<p>Now, when an elector marks “1” above the line for a party, the elector’s preferences go to the candidates for that party in the order they are listed below the line. They then flow to the candidates of the party marked “2” above the line, and so on. </p>
<p>Voters thus regain control over their preferences. They can see on the face of the ballot to whom the preferences go and decide how far those preferences should go.</p>
<p>Voters are instructed to vote for at least six parties or groups above the line, or at least 12 candidates below the line. This is intended to reduce the risk of too many votes becoming “exhausted” by not having enough preferences for the vote to end up electing a candidate.</p>
<h2>How the case was argued and decided</h2>
<p>Day had <a href="http://www.senatorbobday.com.au/media-release-constitutional-risk-on-voting-devils-deal-25-over-3-million-voters-disenfranchised/">argued</a> the government’s changes would leave those voters who wish to vote for minor parties “disenfranchised” because their vote, if their preferences exhaust, will not go on to elect any candidate. His arguments before the High Court, however, were more <a href="http://sydney.edu.au/law/slr/slr_38/slr38_2/SLRv38n2TwomeyBTHC.pdf">technical in nature</a>. </p>
<p>First, Day argued that because the ballot offers electors the option to vote above the line and below the line, this is two separate methods of voting – breaching the requirement in <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/xx9.html">Section 9</a> of the Constitution that there be a single method of choosing senators. </p>
<p>The High Court dismissed this argument. It said “method” should be construed broadly to permit more than one way of indicating a choice within a single uniform system. It said Day was arguing for a:</p>
<blockquote>
<p>… pointlessly formal constraint on parliamentary power to legislate with respect to Senate elections.</p>
</blockquote>
<p>Day’s second argument was that when voting above the line, people were really voting for parties – not candidates. Therefore, the Senate was not “directly chosen by the people” as required by the Constitution. </p>
<p>The court described this argument as “untenable”. It noted that, under the new system, a vote above the line is a vote directly for the candidates of that party listed below the line. The court politely refrained from pointing out that the validity of Day’s election would be threatened by his own arguments on this point.</p>
<p>Day’s third argument concerned the problem with the exhaustion of votes and the fact that the votes of some electors may not end up electing candidates. He attempted to derive a principle of “direct proportionality” from the Constitution, which required that all electors have their votes reflected in the election of candidates. </p>
<p>The court was again very dismissive of this argument. It said:</p>
<blockquote>
<p>There is no principle of “direct proportionality” to be infringed. There is no disenfranchisement in the legal effect of the voting process. The plaintiffs’ argument, based upon effects adverse to the interests of so-called “minor parties”, was in truth an argument about the consequences of elector choices between above the line and below the line voting and in the number of squares to be marked. It should be rejected.</p>
</blockquote>
<p>Ultimately, it is up to voters to decide whether they want to give full preferences or whether they want their vote to exhaust rather than elect someone they oppose. This is not disenfranchisement – it is democratic choice.</p>
<p>Day also argued the ballot paper was misleading, as it does not include in the instructions all the additional vote-saving provisions. The court concluded the ballot paper was not misleading. The paper’s instructions accurately reflected the law and there was no need to include all the savings provisions.</p>
<p>Overall, the High Court was dismissive of the arguments made, not even attempting to develop them in a way that could give them substance and merit. Being a unanimous judgment, it is plainly clear that the new Senate voting system and the use of above-the-line and below-the-line voting are constitutionally valid. </p>
<p>It is now up to voters to exercise their greater freedom in granting their preferences to ensure the Senate truly represents their voting wishes.</p><img src="https://counter.theconversation.com/content/59170/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>The High Court regarded none of Bob Day’s arguments in his challenge to Senate voting reforms as having any merit.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/566662016-03-23T19:38:11Z2016-03-23T19:38:11ZA long election campaign is not necessarily a big risk for Turnbull<figure><img src="https://images.theconversation.com/files/116127/original/image-20160323-32312-zrx46l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A ten-week – or longer – campaign is not necessarily a problem for Malcolm Turnbull.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>There is a saying in boxing that you should never telegraph your punches if you can help it. Former prime minister Tony Abbott was a <a href="http://www.couriermail.com.au/sport/boxing-mma/tony-abbotts-brief-but-successful-boxing-career-steels-him-for-bigger-game/story-fnii0bqi-1226706646170">boxer in his youth</a>, but it appears that current leader Malcolm Turnbull never pulled on the gloves because, if he had, he might be more alert to the dangers of letting all of your opponents know what you are going to do well in advance of actually doing it.</p>
<p>The timing of the 2016 election is a case in point. The media are convinced that there will be a double-dissolution election to be held on Saturday, July 2, and have declared the election campaign to be <a href="http://www.abc.net.au/news/2016-03-23/barnes-coalition-and-labor-strategies/7268776">on in earnest</a>.</p>
<p>What is actually happening is that Turnbull is trying to <a href="https://theconversation.com/turnbull-ultimatum-july-2-double-dissolution-unless-reconvened-senate-passes-industrial-relations-bills-56586">set up the pretext</a> for a double-dissolution election by re-introducing to the Senate legislation designed to re-establish the Australian Building and Construction Commission (ABCC). This bill had been defeated once before, and a second defeat would qualify it as a <a href="https://theconversation.com/explainer-what-are-double-dissolution-elections-and-why-might-we-soon-have-one-56134">double-dissolution trigger</a> under Section 57 of the Constitution.</p>
<p>The point is that the election trigger has not been pulled yet. There has been no prime ministerial visit to the governor-general to advise on the need for new elections, and no writs have been issued. All that has happened so far has been a series of telegraphed punches from Turnbull including the recalling of parliament, the rescheduling of the debate for the appropriation bills, and the passage of <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">Senate voting reforms</a>. </p>
<p>Turnbull has even telegraphed his intention to make industrial relations an issue if and when the election is called – provided the Senate does actually reject the ABCC bill a second time. He will be in a tricky situation if, against expectations, the crossbench passes the bill. </p>
<p>With the faux election underway, commentators have been musing about the wisdom of prime ministers allowing for such a long campaign period. The group-think on this has been <a href="http://www.smh.com.au/federal-politics/political-news/think-carefully-malcolm-john-howards-warning-to-turnbull-on-double-dissolution-election-20160227-gn54vk.html?skin=text-only">referring to the experience</a> of Bob Hawke in 1984 when his government, having made important changes to the electoral laws including an increase in the number of parliamentarians, called an election that ran for ten weeks. </p>
<p>The conventional wisdom was that this campaign went on for too long and Labor under-performed as a result. Commentators are speculating that history could repeat itself in 2016.</p>
<p>The problem with making such a comparison is that the circumstances of the <a href="https://en.wikipedia.org/wiki/Australian_federal_election,_1984">1984 election</a> were quite different from those at this election. The 1984 election was called very soon after the <a href="https://en.wikipedia.org/wiki/Australian_federal_election,_1983">1983 double-dissolution election</a> – which Labor won very comfortably – primarily to bring the timing of half-Senate elections back into line with the tenure of the House of Representatives. </p>
<p>With such a prosaic rationale for the contest, Hawke struggled to find issues with which to engage the voters. The then-opposition leader, Andrew Peacock, had some success in drawing attention to the government’s faults. Given Labor was defending a margin won in 1983 at a government-changing election, seat losses in 1984 were inevitable. </p>
<p>When it happened, however, the conventional wisdom was that Hawke had somehow failed and that a prime minister should therefore avoid long election campaigns. </p>
<p>Unlike the situation in 1984, the 2016 election is due somewhere within the expiry of the normal three-year cycle for the House of Representatives. The community has been expecting an election, and Turnbull’s government has been in a de-facto election campaign since the beginning of the year.</p>
<p>The government’s messy abandonment of its own <a href="http://www.abc.net.au/news/2016-02-08/no-gst-hike-in-government-tax-plans-ministers-say/7147298">tax reform debate</a> was due in no small way to the reality of an imminent election and that any decision to increase taxes would be politically damaging. </p>
<p>The government has also been involved in a messy debate about reforming the Senate voting system, but such matters don’t register with voters who are more interested in debates about issues that affect them directly such as taxation, economic policy, health, education and national security. </p>
<p>Given the government’s capacity for protracted policy musings that don’t appear to result in real outcomes, the sense that Turnbull has finally grasped the nettle on something and is going to try to use the electoral process to deal with the Senate may be a godsend for the Coalition. The imperatives of an election will mean that the meandering Turnbull method of policy debate will be put aside. </p>
<p>It will also mean that the conservative rump in his partyroom will have to stop sniping at him over social issues and rejoin the <a href="https://theconversation.com/restless-right-wing-and-a-troublesome-senate-whats-a-good-win-for-turnbull-55703">collective Liberal effort</a> against Labor and the Greens. </p>
<p>There is always the risk in any election campaign that something can go awry. It is logical to assume that the longer the campaign, the greater is the risk that something will go wrong. It is a risk that applies to all the leaders, however, and not just Turnbull.</p>
<p>One clear risk will be the challenge of holding voters’ interest for ten weeks, which will mean very careful planning or when and how the government rolls out policy. As the campaign enters the depths of winter, the government will not want voters to become annoyed with or sick of it.</p>
<p>An election had to be held at some point in 2016, and Turnbull is at least trying to do something about the Senate. Perhaps his biggest mistake so far has been that he did not call a double-dissolution election sooner.</p><img src="https://counter.theconversation.com/content/56666/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nick Economou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The conventional wisdom is that Bob Hawke’s 1984 election was too long and almost disastrous, and therefore not to be repeated. But the times are very different now.Nick Economou, Senior Lecturer, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/556412016-03-18T03:56:26Z2016-03-18T03:56:26ZSenate voting changes pass – so how do we elect the upper house now?<figure><img src="https://images.theconversation.com/files/114770/original/image-20160311-11285-5fp7vw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What does a formal ballot look like after the government's Senate voting changes?</span> <span class="attribution"><span class="source">AAP/Richard Wainwright</span></span></figcaption></figure><p>After a marathon debate in the upper house, the <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5626">Turnbull government’s changes</a> to the way Australians elect their senators passed on Friday.</p>
<p>Under the changes, voters will have more control over their preferences.</p>
<p>The general principles of the system are:</p>
<ul>
<li><p>you have one vote;</p></li>
<li><p>you can express preferences for candidates in the order you prefer them, writing 1, 2, 3, 4, 5, 6 and so on; and</p></li>
<li><p>if the candidate for whom you vote “1” is not elected, the full value of your vote passes to the candidate to whom you gave your “2”. And if that candidate is not elected, to your “3” and so on.</p></li>
</ul>
<p>So, what do Australians need to know about the new system when they go to vote for their senators in this year’s federal election?</p>
<h2>Voting below the line</h2>
<p>Below-the-line voters rank individual candidates in the order they prefer. The government’s changes mean you have to number at least 12 squares below the line. But your ballot will nevertheless be formal provided it shows six consecutive preferences.</p>
<p>Suppose you are a Liberal voter but don’t like the order of candidates as shown on the ballot paper. You may number the squares of the six Liberal candidates in any order – provided the numbers are sequential and each is different. </p>
<p>If you then want to preference the Shooters and Fishers candidates (numbering 7 to 12), then Palmer United candidates (numbering 13 to 18), but dislike the remaining parties, you may leave their candidates’ squares blank. Your ballot is still formal and will be counted – as in the mock voting paper below.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=525&fit=crop&dpr=1 600w, https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=525&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=525&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=660&fit=crop&dpr=1 754w, https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=660&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/115037/original/image-20160314-11277-1asx87t.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=660&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Click to zoom.</span>
<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>Suppose you want to support particular candidates from different parties – and want to rank Penny Wong, Sarah Hanson-Young and Jacqui Lambie ahead of all the other candidates. You may certainly do that – again provided your ballot includes 1 to 12 and those preferences are sequential.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=473&fit=crop&dpr=1 600w, https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=473&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=473&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=595&fit=crop&dpr=1 754w, https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=595&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/115038/original/image-20160314-11267-1eb18l6.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=595&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Click to zoom.</span>
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<p>You might want to rank everyone except the main parties first. Let’s say that you also prefer the Hemp Party and Socialist Alternative first, but then want to vote for the Shooters and Fishers. If you then think Labor is the least bad of the main parties, the best way to use your ballot is to preference all of the small parties’ candidates and then Labor’s. That way, even if all the smaller parties’ candidates are excluded from the count, your next choice gains the value of your vote. </p>
<p>Note that you can rank the candidates of a particular party in any order. In the example below, the voter prefers Donald Trump to the other Shooters and Fishers candidates.</p>
<p>The more genuine preferences you express, the more likely a candidate you favour will be elected rather than one you disfavour.</p>
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<p>The changes allow a vote to be formal provided that the first six consecutive numbers are 1, 2, 3, 4, 5, 6. If you omit or repeat a number, the ballot will still be counted. So a ballot that has the preferences 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13 would be formal – but only preferences one to nine would count.</p>
<h2>Voting above the line</h2>
<p>Voters are still able to vote above the line, where they rank parties – not individual candidates. If you put a “1” in the Liberal square, the first Liberal to gain from your vote will be (in our example) Malcolm Turnbull, the second Alexander Downer, the third Tony Abbott and so on.</p>
<p>A valid above-the-line ballot is 1 to 6, as in the following example, which places the major parties last. But this voter feels that if a smaller party doesn’t get elected, the preferences should go in the order “Liberal – Labor – Green”.</p>
<p>It could happen that when this voter’s preferences are finally transferred, all the candidates for the first six parties chosen had been elected or excluded. The vote is then used to help decide the final contest, between Labor and the Greens – in this case favouring Labor.</p>
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<p>An above-the-line “savings provision” means that even if you mark only one square, your ballot will still be counted. But (for example) if you mark the square for Climate Sceptics – and only that square – and the Climate Sceptics candidates fail to get enough votes to remain in the count, your ballot will become exhausted, meaning it will not count towards electing a senator. </p>
<p>This is why it is much better to express as many preferences as you can or want to – either below or above the line.</p><img src="https://counter.theconversation.com/content/55641/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Morey is the National Secretary of the Proportional Representation Society of Australia. </span></em></p>What do Australians need to know when they go to vote for their senators in this year’s federal election?Stephen Morey, Australian Research Council Future Fellow, Linguistics, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/564982016-03-18T00:30:02Z2016-03-18T00:30:02ZVIDEO: Michelle Grattan on Senate voting reform<figure>
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<p>University of Canberra Vice-Chancellor Stephen Parker and Professorial Fellow Michelle Grattan discuss the week in politics including the Senate voting reform bill, the possibility of a double-dissolution election, how Prime Minister Malcolm Turnbull will fair if he is re-elected with a small majority, and the government’s commitment to a plebiscite on same-sex marriage if it is re-elected.</p><img src="https://counter.theconversation.com/content/56498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>University of Canberra Vice-Chancellor Stephen Parker and Professorial Fellow Michelle Grattan discuss the week in politics.Michelle Grattan, Professorial Fellow, University of CanberraStephen Parker, Vice-Chancellor, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/563532016-03-16T01:28:23Z2016-03-16T01:28:23ZPolitics podcast: Ricky Muir’s fight to stay in the Senate<p>The Australian Motoring Enthusiast Party’s Ricky Muir this week made an unsuccessful last roll of the dice to try to delay the government’s Senate voting reform legislation. The bill will prevent almost all “micro” players being elected to the Senate, and facilitate the government driving out most of the current bunch if it holds a double-dissolution election. </p>
<p>But Muir tells Michelle Grattan the reforms have not been properly scrutinised and the process to approve them has been a sham. While he acknowledged the need for some reform, he believes the government is scapegoating him for being elected on 0.51% of the primary vote.</p>
<p>“Do I appreciate that some kind of changes could happen? Absolutely. But it needs to be a long, thought-out, thorough process with proper public consultation,” he says. </p>
<p>Muir, who was reticent about speaking out in public in his first months in the Senate, is now fiesty. He is taking a high-profile and ready to fight for his political reputation at the election.</p><img src="https://counter.theconversation.com/content/56353/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ricky Muir from the Australian Motoring Enthusiast Party this week made an unsuccessful last roll of the dice to try to delay the government's Senate voting reform legislation.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/557602016-03-04T05:25:48Z2016-03-04T05:25:48ZVIDEO: Michelle Grattan on Tony Abbott’s policy interventions<figure>
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<p>It has been a week of political contests, both within party lines and across them. University of Canberra Vice-Chancellor Stephen Parker and Professorial Fellow Michelle Grattan take a look at the bitter rivalry between Malcolm Turnbull and Tony Abbott, and the contrasting performances of Treasurer Scott Morrison and his shadow counterpart Chris Bowen.</p><img src="https://counter.theconversation.com/content/55760/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It has been a week of political contests, both within party lines and across them. Stephen Parker and Michelle Grattan take a look at the bitter rivalry between Malcolm Turnbull and Tony Abbott.Michelle Grattan, Professorial Fellow, University of CanberraStephen Parker, Vice-Chancellor, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/556572016-03-02T09:04:26Z2016-03-02T09:04:26ZPolitics podcast: Mathias Cormann on Senate reform<p>Following recommendations from the Joint Standing Committee on Electoral Matters, the government has amended its Senate reform bill to include provision for optional preferential voting “below the line” as well as “above the line”. </p>
<p>Special Minister of State Mathias Cormann explains the details of the changes and says the bill “empowers the Australian people to determine what happens to their votes and their preferences”.</p>
<p>“What it does is it will help ensure that the result at the next Senate election and any subsequent Senate election reflects the will of the people.”</p><img src="https://counter.theconversation.com/content/55657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special Minister of State Mathias Cormann explains the changes to the government's Senate voting reforms.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/555752016-03-02T01:11:44Z2016-03-02T01:11:44ZIs a constitutional challenge to Senate voting reforms likely to succeed?<figure><img src="https://images.theconversation.com/files/113464/original/image-20160301-31059-qje4fv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The High Court is unlikely to be sympathetic to claims of discrimination against the microparties in the proposed Senate reforms.</span> <span class="attribution"><span class="source">AAP/Lukas Koch</span></span></figcaption></figure><p>The response of those senators whose re-election is threatened by the proposed <a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r5626_third-reps/toc_pdf/16025b01.pdf;fileType=application%2Fpdf">Senate voting reforms</a> has been to lash out with claims of unconstitutionality and threaten <a href="http://blogs.abc.net.au/antonygreen/2016/02/senate-reform-why-bother-forcing-btl-votes-to-be-full-preferential.html">High Court challenges</a>. Are these reforms vulnerable to challenge and on what basis would this occur?</p>
<h2>‘Directly chosen by the people of the state’</h2>
<p>The key provision is Section 7 of the Constitution. It says that the Senate:</p>
<blockquote>
<p>… shall be composed of senators for each State, directly chosen by the people of the State… </p>
</blockquote>
<p>The critical words are “chosen” and “the people”.</p>
<p>If certain groups are excluded from being able to vote, such as women or particular races, the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2007/43.html">High Court</a> has taken the view that the houses of parliament would not be directly chosen by “the people”. </p>
<p>The validity of other exclusions from voting, such as those based on age, citizenship or imprisonment, will depend on whether there is a “substantial reason” for the exclusion, compatible with the maintenance of the system of representative government.</p>
<p>The proposed Senate voting reforms will not exclude anyone from voting. It is claimed that up to 25% of electors vote for the non-major parties, and that these voters will be <a href="http://www.senatorbobday.com.au/media-release-constitutional-risk-on-voting-devils-deal-25-over-3-million-voters-disenfranchised/">“disenfranchised”</a>. </p>
<p>However, if these electors choose to vote above-the-line, they are instructed to vote for at least six different parties or groups and can choose to give further preferences if they wish. They are not being disenfranchised; it is their choice whether or not they wish to give additional preferences or allow their vote to be exhausted so that it cannot be used to elect a person to whom they object.</p>
<p>The Senate voting reforms are not excluding any of “the people” from exercising their choice in voting for the Senate. Their choices are enhanced by the reforms. We would therefore have a Senate “chosen by the people”.</p>
<h2>Maximising participation</h2>
<p>There is an argument, however, that the consequence of optional preferential voting is that some votes will exhaust and that this will reduce the participation of “the people” in choosing the Senate. </p>
<p>In the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2010/46.html">Rowe case</a> in 2010, a majority of the High Court emphasised the importance of maximising the participation of the people in elections and the need to make elections as expressive of the will of the majority of the people as practical considerations permit.</p>
<p>Optional preferential voting would most likely have the effect of reducing the number of votes used to choose the Senate. The critical difference, however, is that the Rowe case concerned a law that prevented people from voting, whereas under optional preferential voting it is the choice of the elector whether his or her preferences exhaust or result in electing a senator. </p>
<p>There is a strong argument that the Senate may still be “chosen by the people” and expressive of the will of the people, even though some choices involve letting a vote exhaust rather than electing a senator who the voter rejects.</p>
<h2>Discrimination against microparties?</h2>
<p>It might also be argued that these voting reforms are intended to discriminate against small political parties and that this is somehow unconstitutional. </p>
<p>This argument is unlikely to succeed because the High Court has previously accepted in the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2004/41.html">Mulholland case</a> that electoral laws for above-the-line voting can exclude political parties that have no real public support and have been created as “shell parties” or “front parties” to manipulate the preference system.</p>
<p>In the Mulholland case, Justice McHugh accepted that a law requiring parties to have at least 500 members before they can be placed above-the-line on the ballot paper was valid because it protected the electoral process by preventing voters from being misled by parties with:</p>
<blockquote>
<p>… no substantial membership … and a ‘single issue’ party name calculated to catch the eye of voters and to channel preferences to another party (whose policies may be entirely unrelated to the name of the ‘single issue’ party).</p>
</blockquote>
<p>Justice Kirby added that it was:</p>
<blockquote>
<p>… within the lawmaking powers of parliament to decide that [party regulation] was reasonably necessary to reduce confusion in the size and form of the ballot paper; to diminish the risk and actuality of deception of electors; to discourage the creation of phoney political parties; and to protect voters against disillusionment with the system of parliamentary democracy.</p>
</blockquote>
<p>On this basis, it is unlikely that the High Court would be particularly sympathetic to the claims of discrimination by the microparties.</p>
<h2>Difference between above-the-line and below-the-line voting</h2>
<p>The other area that might have been vulnerable to challenge was any disparity between the above-the-line and below-the-line voting systems. The bill in its original form provided for optional preferential voting above the line but still required full preferences below the line. </p>
<p>The <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/CEAB2016">Joint Standing Committee on Electoral Matters</a> has <a href="http://www.theguardian.com/australia-news/2016/mar/02/coalition-deal-with-greens-paves-way-for-double-dissolution-election">since recommended</a> that optional preferential voting apply below the line as well, with voters only being required to give 12 preferences (with savings provisions if only six are given). </p>
<p>If the government adopts this change, it will remove one cause for constitutional complaint and enhance voters’ ability to express their wishes, permitting them to order preferences for candidates within a party according to their own wishes.</p>
<h2>Is a High Court challenge likely to succeed?</h2>
<p>The High Court has long accepted that there is a broad spectrum in which different electoral laws may operate to elect the houses. Its main concern has been preventing the exclusion of electors from voting, which is not something the proposed laws affect. </p>
<p>As these reforms will enhance the choices of voters and better reflect their voting intentions – even though they may reduce the number of votes used to elect the Senate – overall it seems likely that they will withstand any challenge.</p><img src="https://counter.theconversation.com/content/55575/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey receives funding from the Australian Research Council and sometimes does consultancy work for Governments or inter-government bodies.</span></em></p>A suggested constitutional challenge to the Senate reforms through the High Court is unlikely to succeed.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/554402016-02-26T00:53:49Z2016-02-26T00:53:49ZVIDEO: Michelle Grattan on the defence white paper<figure>
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<p>The release of the defence white paper this week revealed plans to substantially increase Australia’s military spending over the next decade. Despite the significance of the document, tax issues continued to dominate federal politics, particularly in Question Time, where Labor appeared to gain the upper hand. </p>
<p>University of Canberra Deputy Vice-Chancellor Nicholas Klomp and Professorial Fellow Michelle Grattan discuss the merits of the white paper, the government’s policy vacuum on tax and the bizarre spectacle of Shadow Special Minister of State Gary Gray denouncing his own party’s position on Senate voting reforms.</p><img src="https://counter.theconversation.com/content/55440/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of the defence white paper this week revealed plans to substantially increase Australia’s military spending over the next two decades.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/552972016-02-24T19:04:01Z2016-02-24T19:04:01ZThe proposed Senate voting change will hurt Australian democracy<figure><img src="https://images.theconversation.com/files/112652/original/image-20160223-29156-1x1gazj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ricky Muir makes up his mind based on how he thinks the proposed policy will affect ordinary Australians like himself.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>More than two centuries ago, the great conservative philosopher and politician Edmund Burke famously characterised parliament as being properly a <a href="http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html">“deliberative assembly”</a>. </p>
<p>Today we can unpack deliberation to see that it requires two things: justification and reflection. Justification is the ability to make arguments on behalf of positions and policies. Reflection is the ability to listen to those arguments and be open to persuasion by them.</p>
<p>Australia’s federal parliament is today composed almost entirely of people who are good at justification but terrible at reflection. It is not a deliberative assembly in Burke’s sense, rather a theatre of expression where politicians from different sides talk past each other in mostly ritual performance. Party politicians do not listen, do not reflect and do not change their minds.</p>
<h2>A true ‘house of review’?</h2>
<p>If we were looking for reflection in Australia’s system, the one place we ought to find it is the Senate. Traditionally, upper houses were supposed to be <a href="http://www.aph.gov.au/about_parliament/senate/about_the_senate">“houses of review”</a> that could control the excesses to which lower houses might be prone. </p>
<p>The proper division of labour would then be a bit like a jury trial, where we have justification or advocacy confined to one chamber – the courtroom, where lawyers argue cases for their clients – and reflection in another chamber – the jury room. We do not let the advocates enter the jury room.</p>
<p>Unfortunately the Australian parliament today has two chambers of justification and no chamber of reflection. And the government’s <a href="https://theconversation.com/explainer-what-changes-to-the-senate-voting-system-are-being-proposed-55128">proposed changes</a> to the way Australians elect their senators will only worsen this reality.</p>
<p>The shining exceptions to this generalisation about lack of reflection come in the form of some of the senators who <a href="https://theconversation.com/the-2013-senate-contest-australia-lurches-to-the-right-17535">found their way</a> into the Senate at the 2013 election through the existing system, which makes it possible for individuals to be elected without any of the major parties sponsoring them. </p>
<p>I am thinking especially of the Motoring Enthusiast Party’s Ricky Muir, though perhaps Palmer United Party-turned-independent Glenn Lazarus can sometimes show a hint of the same virtue.</p>
<p>Muir does exactly what a senator should. He approaches issues with few preconceived positions, listens to the arguments on different sides, then makes up his mind on how to vote. Except for issues involving cars, it is hard to predict how he will vote based on the party he was elected to represent.</p>
<p>Muir makes up his mind based on how he thinks the proposed policy will affect <a href="http://www.abc.net.au/news/2013-09-09/motoring-enthusiast-candidate-27just-an-ordinary-australian27/4946862">ordinary Australians</a> like himself. It is his very ordinariness that makes him such a good senator. On the former Abbott government’s proposed deregulation of universities, <a href="http://www.news.com.au/national/senator-ricky-muir-questions-university-fees-in-first-question-in-the-senate/news-story/9f93a4f3b61d41b23fa6d0a1489f7bba">he said</a>:</p>
<blockquote>
<p>What should I tell my children when they ask me why the government wants to deregulate the sector, which could put universities out of reach for millions of ordinary Australians?</p>
</blockquote>
<p>When Muir entered parliament, journalists would make fun of the fact that he was not very articulate or knowledgeable, though eventually he found his voice. But that is irrelevant. His proper task is reflection, not justification.</p>
<h2>More career politicians</h2>
<p>When selecting a jury, we insist that its members have no prior commitments on the case they are hearing. </p>
<p>When we elect a Senate, we should do the same – but not when it comes to the House of Representatives. That is where we can and should vote for people based on their prior commitments and known partisanship.</p>
<p>In this light, Australia’s political system would be better off with more ordinary people and fewer career party politicians in the Senate. The Senate would thus be more representative of ordinary Australians, not less.</p>
<p>If a quirky electoral system with an element of randomness can sometimes promote this possibility, so much the better. When thinking about reform, we should try to identify ways to strengthen the role of ordinary people in our democracy.</p>
<p>What we will get instead, if the changes being pushed by an unholy alliance of the Coalition and the Greens are adopted, is exactly the opposite. </p>
<p>Paul Keating once memorably described the Senate as <a href="https://www.youtube.com/watch?v=cG1khlbqI9k">“unrepresentative swill”</a>. The proposed reform will ensure the Senate is composed almost exclusively of career politicians, who are unrepresentative in the sense that they do not reflect the social composition of Australia. This will also ensure that one of the last vestiges of reflection is purged from our parliamentary system.</p>
<p>This is a sad day for deliberation and for democracy. Edmund Burke will surely be turning in his grave.</p><img src="https://counter.theconversation.com/content/55297/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Dryzek receives funding from the Australian Research Council. </span></em></p>Australia’s political system would be better off with more ordinary people and fewer career party politicians in the Senate. It would thus be more representative of ordinary Australians, not less.John Dryzek, Centenary Professor, ARC Laureate Fellow, Institute for Governance and Policy Analysis, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553152016-02-24T05:54:17Z2016-02-24T05:54:17ZHow can Gary Gray remain shadow minister while denouncing the shadow ministry’s policy?<p>Labor’s unconvincing performance on Senate voting reform reached new levels with the extraordinary speech by frontbencher Gary Gray in parliament on Wednesday.</p>
<p>Labor this week has been going through contortions as it opposes the government’s proposed changes.</p>
<p>The short version of its travails is this. The ALP originally agreed Senate voting reform was necessary, and was part of drafting bipartisan recommendations made by the parliamentary committee on electoral matters.</p>
<p>What’s being proposed in the legislation the government introduced this week is based on these recommendations, although not precisely the same.
But Labor then split, as the factional hardheads feared the changes would most likely benefit the Coalition. As expected, the opponents of change prevailed in shadow cabinet on Monday.</p>
<p>Labor MPs have struggled to prosecute the new line, arguing the reforms would in effect exclude those who did not vote for the main parties (including the Greens) and making other objections. But their credibility has been undermined by the switch the party has made.</p>
<p>There are points to be contested about aspects of this bill but Labor’s overt expediency means it comes to the debate tarnished, with a weak case.
Now Gray’s speech has dealt the opposition’s position a major blow, attacking its arguments while publicly admitting he had been rolled in his party.</p>
<p>From time to time backbenchers from both sides tip a bucket on their party’s position.</p>
<p>But Gray is not speaking as a backbencher. He could have been. Last week he announced that he would not recontest his Western Australian seat of Brand and had offered his resignation from the frontbench.</p>
<p>Bill Shorten hasn’t accepted that resignation. Gray remains as shadow special minister of state – which includes electoral reform.</p>
<p>In his speech Gray said that “fixing the Senate voting system is as important as one vote, one value. It is an important as the franchise itself.”</p>
<p>“A fundamental principle of voting systems is that a voter should actually intend to vote for the candidate or party with whom their vote finally rests. Because of the ability to manipulate the current system, the present Senate voting process now fails this test.”</p>
<p>Gray rejected the contention, made by Labor, that the changes were intended to stifle or prevent the formation of new parties. “These reforms simply mean that political parties, including my own, will have to convince the public rather than backroom dealmakers that they deserve their votes.”</p>
<p>He also dismissed suggestions the new system would increase the informal vote, or deliver the Coalition a controlling majority in the Senate, tabling modelling by the Parliamentary Library to refute the latter point.
And he was scathing about the claim from Labor and others that the changes would cut out the more than three million people who voted for other than the main parties.</p>
<p>“We are told that their votes will be wasted or voided … Votes count.” </p>
<p>He was astonished that “the kind of dumb view that, if you vote for someone who loses … your vote is wasted” had taken some hold during the discussion.</p>
<p>Gray said that he “lost the argument in my party room on Senate reform, so Labor will oppose the substantive reforms that are enshrined in this bill. I think that is sad, but it is a reality. My party has moved that it will be opposing this bill and therefore I oppose this bill.”</p>
<p>In the circumstances, Shorten certainly should accept Gray’s resignation. That would mean an awkward reshuffle – Gray is also resources spokesman – and Shorten might not want to rock that boat. But the idea that one retains a spokesman who not only doesn’t agree with the party’s policy in his area but surgically dissects it in parliament not only defies all convention but is surely a nonsense.</p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/xhsqr-5cf08b?from=yiiadmin" data-link="http://www.podbean.com/media/player/xhsqr-5cf08b?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/55315/count.gif" alt="The Conversation" width="1" height="1" />
Labor’s unconvincing performance on Senate voting reform reached new levels with the extraordinary speech by frontbencher Gary Gray in parliament on Wednesday. Labor this week has been going through contortions…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/552992016-02-24T00:56:04Z2016-02-24T00:56:04ZPolitics podcast: senator David Leyonhjelm on Malcolm Turnbull<p>Liberal Democrat senator David Leyonhjelm has accused Malcolm Turnbull of failing to live up to his promise to liaise closely with the Senate crossbenchers.</p>
<p>As the “micro” players react furiously to the government’s proposed Senate voting changes, Leyonhjelm tells Michelle Grattan he has not heard from Turnbull since his call in his first week as prime minister. Despite the “reservoir of goodwill” he enjoyed on taking over, Turnbull did not follow through.</p>
<p>The Coalition government has been appallingly bad at negotiating with the crossbenchers, Leyonhjelm says. Unlike the Gillard government, which negotiated successfully with lower house crossbenchers, the Abbott and Turnbull governments never learnt how to do it.</p>
<p>Leyonhjelm and the other “micro” Senate players have been invited to dinner at The Lodge this week. They are ready to vent their sense of grievance to Turnbull face-to-face.</p><img src="https://counter.theconversation.com/content/55299/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Liberal Democrat senator David Leyonhjelm says the government has been appallingly bad at negotiating with the crossbench.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/551412016-02-23T05:56:32Z2016-02-23T05:56:32ZProposed Senate electoral reform is essential<p>The government has <a href="http://kevinbonham.blogspot.com.au/2016/02/senate-reform-its-finally-on.html">announced changes to the Senate</a> electoral system. The group voting ticket has been abandoned, and instead voters will need to number at least six groups above the line. However, there is a savings provision so that voters who just number one box will still have their vote counted; it will exhaust within their chosen party. As a result, the informal rate will not increase; ballot papers that were formal under the current system will still be formal.</p>
<p>The major benefit of the proposed system is that voters will determine which candidates win seats via their <em>own</em> preferences. Under the current system, parties determine the preferences of everyone who votes “1” above the line. </p>
<p>The proposed system will give minor parties which earn about 6% of the vote in a normal half-Senate election a much greater chance to win seats than under the originally proposed fully optional preferential system, where only a single “1” was required. Under that system, most people would not have distributed preferences, benefiting the three established parties.</p>
<p>There were four travesties that occurred at the 2013 election which the proposed system would make extremely unlikely or impossible.</p>
<ol>
<li><p>In NSW, Liberal Domocrat David Leyonhjelm <a href="http://www.abc.net.au/news/federal-election-2013/results/senate/nsw/">was elected</a> through voter confusion with the Liberals. He drew the column on the far left of the enormous ballot paper. Under the proposed reforms, no-hope parties would be less likely to contest elections, meaning the ballot paper would be smaller, and name confusion would be less likely. Leyonhjelm’s seat should have gone to the Greens.</p></li>
<li><p>In Victoria, Ricky Muir of the Motoring Enthusiasts Party won a seat with just 0.5% of the vote. This seat should have gone to the Liberals.</p></li>
<li><p>In SA, Family First’s Bob Day won on 3.8% of the vote, with Labor and Greens preferences giving him the win. This seat should have gone to Nick Xenophon’s No. 2.</p></li>
<li><p>In WA, the election was thrown out by the courts because of a handful of missing votes and a critical exclusion that decided who won the final two seats, even though neither party at that exclusion point could win a seat. The election had to be re-run at vast expense. The result was that Palmer United won a seat that should have gone to Labor on the original count.</p></li>
</ol>
<p>Those on the left who want the current system kept because the Senate has obstructed the Coalition government’s agenda should note that in three of the four cases above, the undeserving winner was further to the right than the person who deserved to win. Also, in 2010, the DLP’s John <a href="http://www.abc.net.au/elections/federal/2010/guide/svic-results.htm">Madigan won a seat</a> that should have gone to Labor in Victoria.</p>
<p>Here are tables of the actual Senate, compared with how the Senate would probably look had the proposed system been used at both the 2010 and 2013 elections.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=456&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=456&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=456&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=573&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=573&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112486/original/image-20160223-16422-snmxm1.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=573&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">actual Senate.</span>
</figcaption>
</figure>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112491/original/image-20160223-16447-1oqzqca.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Senate as proposed.</span>
</figcaption>
</figure>
<p>I have made one change from tables which assumed fully optional preferential voting, as I think Palmer United’s Jacqui Lambie would now defeat the Liberals No. 3 in Tasmania, since there would be far more preferences. Note that both “Others” in SA in the proposed system are from Nick Xenophon, whereas the actual result was one Xenophon and one Bob Day.</p>
<p>Under the proposed system, it is likely that Labor and the Greens combined would have a blocking majority (38 of 76 seats). Some have argued that Labor and the Greens could never win control under the proposed system, and that the Coalition would be more likely to win a majority. Given that the tables reflect an election (2010) that Labor barely won, and another (2013) that they heavily lost, it seems more likely that Labor and the Greens will benefit from the proposed reforms.</p>
<p>Another argument that has been made in favour of the current system is that the Senate should be more diverse. If people want a more diverse Senate, they can actually vote for parties that are not currently established. Until then, the Senate should reflect those parties that consistently poll at least 7%. There is no reason for the total “Others” vote to be represented, as left wing Others, such as the Sex Party and Animal Justice Party, have very little in common with right wing Others, such as Family First and the Christian Democrats.</p>
<p>I am very disappointed in Labor’s opposition to these essential reforms. A progressive party should not oppose reforms that will put preference decisions back in the hands of voters, instead of parties. Despite Labor’s opposition, these reforms will pass the Senate on Coalition and Greens votes.</p><img src="https://counter.theconversation.com/content/55141/count.gif" alt="The Conversation" width="1" height="1" />
The government has announced changes to the Senate electoral system. The group voting ticket has been abandoned, and instead voters will need to number at least six groups above the line. However, there…Adrian Beaumont, PhD Student, Department of Mathematics and Statistics, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/551282016-02-22T23:39:04Z2016-02-22T23:39:04ZExplainer: what changes to the Senate voting system are being proposed?<figure><img src="https://images.theconversation.com/files/112300/original/image-20160222-25879-drf1j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government's changes to the Senate voting system will almost certainly pass with the support of the Greens and Nick Xenophon.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Labor has announced <a href="http://www.theguardian.com/australia-news/2016/feb/22/malcolm-turnbull-moves-to-overhaul-senate-voting-system-before-election">it will oppose</a> the government’s <a href="http://www.prsa.org.au/2016-02-22_cwth_electoral_amendment_bill_2016.pdf">proposed changes</a> to the way Australians elect their senators. Labor’s opposition is almost certainly moot, however, as the government has the support of the <a href="http://www.prsa.org.au/history.htm#CWTH_5_campaigns">Greens</a> and independent senator <a href="http://www.adelaidenow.com.au/news/south-australia/senate-reform-could-boost-nick-xenophon-kill-off-minor-parties/news-story/0d9d44c77f301498ef250eb767d2b4b0">Nick Xenophon</a> to pass its legislation in the upper house.</p>
<p>Introducing the proposal on Monday, Prime Minister Malcolm Turnbull referred to the Joint Standing Committee on Electoral Matters’ <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/2013_General_Election/Final_Report">unanimous recommendations</a> on changes to the Senate voting system. This made it seem like the government was adopting all of them. </p>
<p>However, one of the committee’s most important recommendations – for optional preferential voting below the line – was ignored. So, the government’s proposed changes do not match <a href="https://www.pm.gov.au/media/2016-02-22/joint-media-release-senate-voting-reform">Turnbull’s statement</a> that:</p>
<blockquote>
<p>… the outcomes will reflect faithfully what each and every voter intends as they exercise their democratic choice.</p>
</blockquote>
<p>So, what are the changes? And how will they affect us as voters?</p>
<h2>What are the changes?</h2>
<p>For the <a href="http://results.aec.gov.au/17496/Website/SenateUseOfGvtByState-17496.htm">nearly half a million Australians</a> who vote below the line – ranking candidates as well as parties – there is just a tiny token improvement: increasing allowable mistakes from three to five, but only “as long as 90% of the ballot paper below the line is filled in correctly”. </p>
<p>In other words, voters will still have to mark all the numbers and hope they don’t make too many mistakes.</p>
<p>There is significant change for those voting above the line. Currently, when you vote “1” in your chosen party’s box, you are voting for its candidates in the order that the party decided, and then your preferences go to all the other candidates as the party has decided. This system used <a href="http://www.prsa.org.au/history.htm#gvt">“group voting tickets”</a>, which list a preference order for all candidates.</p>
<p>Under the government’s proposed changes, if you vote “1” above the line, your vote will only go to that party’s candidates. No preferences will be transferred to other candidates. </p>
<p>Voters will be told to preference at least six blocks of candidates (party groups), numbering at least 1 to 6 above the line. This means voters – rather than the parties – will now choose which parties they wish to preference.</p>
<p>But the government realised that far too many voters would just vote “1” – as most have for decades. So, it has proposed a “savings provision”, which will make your ballot formal – meaning it can be counted – even if you just vote “1” above the line. If you do this, your vote will be transferred only to candidates of the party you have voted “1” for. </p>
<p>If that party has insufficient votes, your vote will become “exhausted” and cannot be transferred further.</p>
<h2>Do the changes benefit voters?</h2>
<p>The 2013 federal election results <a href="https://theconversation.com/the-2013-senate-contest-australia-lurches-to-the-right-17535">raised concerns</a> over just how “microparty” candidates were elected with very few first preference votes. They did gain enough support for election, but that was by preferences. Those preferences were mostly via the group voting tickets.</p>
<p>It was argued that many of those voters for candidates of small parties – for example the Animal Justice Party in Victoria – might not have wanted their preferences to proceed to elect the Motoring Enthusiasts’ Ricky Muir, but they nevertheless did. That would have been proper if the voters themselves had preferenced the Motoring Enthusiasts candidates, but it was the party lodging the group voting ticket that actually made the decision. </p>
<p>The proposed removal of group voting tickets is an improvement, but it could have been so much more. </p>
<p>The fairest way of overcoming this perceived problem is to <a href="https://theconversation.com/trusting-the-voters-to-decide-their-preferences-should-guide-senate-reform-48084">trust the voters</a>:</p>
<ol>
<li><p>to decide who gets their first preference and all their subsequent preferences; and</p></li>
<li><p>to let them decide how many further preferences they give.</p></li>
</ol>
<p>But the government’s changes don’t do that, and still perpetuate a very discriminatory difference between below-the-line and above-the-line voters. </p>
<p>Below-the-line voters have to mark virtually all the boxes, sometimes as many as 115 or even more, expressing preferences for virtually all candidates. Above-the-line voters are asked only to mark six boxes, and their vote will count even if they mark only one. </p>
<p>That doesn’t meet a standard for an electoral system voters can be confident in. How genuine is a reform declaring a particular numbering as formal if expressed above the line, but informal if written out below the line?</p>
<p>Australia’s Constitution <a href="http://www3.austlii.edu.au/au/legis/cth/consol_act/coaca430/xx7.html">requires federal MPs</a> be “directly chosen by the people”. This was intended to mean that voters must choose the individuals that will represent them. For the Senate, the only way for all voters to do that is to vote below the line.</p>
<p>Under the new rules voters are still significantly discriminated against if they want to “directly” choose the candidates. These voters still have a much higher formality requirement than those voting above the line, choosing party groups. A candidate might again ask the High Court – more probingly than it was asked <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1984/75.html">in 1984</a> – to decide whether that still meets the constitutional requirement.</p><img src="https://counter.theconversation.com/content/55128/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Morey is the honorary National Secretary of the Proportional Representation Society of Australia. He has received funding from the Australian Research Council for research on the Tangsa Naga languages of Northeast India and Northwest Myanmar. </span></em></p>What are the government’s proposed changes to the way the Senate is elected? And how will they affect us as voters?Stephen Morey, Australian Research Council Future Fellow, Linguistics, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550272016-02-22T01:01:42Z2016-02-22T01:01:42ZSenate voting reform: keep it simple, or too many people’s votes won’t be counted<figure><img src="https://images.theconversation.com/files/112102/original/image-20160219-1274-3u7d86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate elections can give parties other than Labor, Liberal and National a chance of winning a seat.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Turnbull government has unveiled <a href="https://twitter.com/political_alert/status/701559911428132865">sweeping changes</a> to how Australians vote for their senators ahead of this year’s federal election.</p>
<p>If passed, the government’s proposal would allow voters to cast at least six preferences above the black line on their Senate ballot paper, rather than requiring voters to fill in all boxes below the line. It would abolish controversial <a href="http://australianpolitics.com/voting/electoral-system/senate-group-voting-tickets">“group voting tickets”</a>.</p>
<p>The Senate voting system is already very complicated. It is by no means certain that voters understand the intricate details of how the transferable vote system, which is at the heart of how the Senate is elected, works.</p>
<p>This is evident in the slightly mischievous claims about candidates such as Ricky Muir winning Senate seats with paltry primary votes. Muir’s <a href="http://results.aec.gov.au/17496/Website/External/SenateStateDop-17496-VIC.pdf">share of the primary vote</a> in 2013 was not great, but it was quite a lot more than that won by the second-placed Liberal and Labor candidates on their respective party tickets.</p>
<h2>Evolution of the Senate voting system</h2>
<p>Since its introduction in time for the 1949 election, one of the outward signs of the Senate voting system’s complexity was the regularity with which rates of informal voting <a href="http://australianpolitics.com/voting/informal/senate-statistics">reached or even exceeded 10%</a>.</p>
<p>Reflecting on the <a href="http://australianpolitics.com/voting/elections/1974-federal">1974 double-dissolution election</a>, Colin Hughes – later chief electoral commissioner – <a href="https://www.questia.com/library/86085742/australia-at-the-polls-the-national-elections-of">reported on</a> the relationship between the high informal vote and the number of candidates on the ballot paper, the lack of any party identifier with those candidates, and the requirement that voters cast a numerically ordered preference for each of those candidates. </p>
<p>Hughes also noted that scrutineers had reported to him that the vast majority of informal votes cast in NSW in particular had been voters who had given their primary vote to the Labor candidate. Had those votes counted, he argued, Labor would have won an additional seat – an outcome that might have avoided the onset of the <a href="http://www.abc.net.au/archives/80days/stories/2012/01/19/3411587.htm">1975 constitutional crisis</a>.</p>
<p>Labor <a href="http://blogs.abc.net.au/antonygreen/2015/09/the-orogins-of-senate-group-ticket-voting-and-it-wasnt-the-major-parties.html">reformed the Senate voting system</a> in 1983 when it returned to government. Party identifiers were now included on ballot papers. </p>
<p>Voters could also now cast a single preference above a thick black line. In so doing, the ballot would be assumed to correspond with the allocation of preferences as determined by that party as lodged with the Australian Electoral Commission – known as <a href="http://australianpolitics.com/voting/electoral-system/senate-group-voting-tickets">group voting tickets</a>.</p>
<p>More than 90% of Australians now <a href="http://www.tallyroom.com.au/27224">vote this way</a> in the Senate. The informal vote has dramatically declined from an average of nearly 10% to being regularly <a href="http://australianpolitics.com/voting/informal/senate-statistics">less than 3%</a>.</p>
<p>But these achievements have been overwhelmed by the controversies the group voting ticket system has also been responsible for. These controversies have arisen over the representational outcomes that have occurred since the system was introduced. These in turn have always been precipitated by the fate of political parties other than Labor, Liberal and National. </p>
<p>Group voting tickets have given all political parties’ organisational wings the chance to participate in the wheeling and dealing of preference allocations. These deals have had real impact. Part of the reason the Australian Democrats <a href="http://www.theage.com.au/articles/2004/09/18/1095394062567.html?from=storylhs">declined as a presence</a> in the Senate was due to Labor placing it behind other parties – such as the Greens – in its group voting ticket. </p>
<p>In 1984, Labor was able to cruel Peter Garrett’s first attempt at a parliamentary career when it <a href="http://www.crikey.com.au/2014/05/12/common-sense-prevails-in-senate-preferential-voting-changes/?wpmp_switcher=mobile">preferenced against</a> Garrett’s Nuclear Disarmament Party. In 1998, all the major parties <a href="https://theconversation.com/hanson-gets-the-band-back-together-can-she-make-an-impact-34747">preferenced against</a> Pauline Hanson’s One Nation.</p>
<p>In 2004, Labor in Victoria <a href="http://www.theage.com.au/articles/2004/10/10/1097406425742.html">preferred Family First</a> to the Greens. This helped Family First’s Steve Fielding secure a Senate seat despite gaining less than 2% of the primary vote.</p>
<h2>What’s happened recently?</h2>
<p>In 2013, while the Liberal and National parties enjoyed a strong swing in the House of Representatives and were on track to secure a large majority, they did not fare <a href="https://theconversation.com/the-2013-senate-contest-australia-lurches-to-the-right-17535">quite so well</a> in the <a href="http://www.abc.net.au/news/federal-election-2013/results/senate/">upper house</a>. </p>
<p>The biggest swing in the Senate vote was to the raft of tickets and candidates other than the main parties – a group dubbed the “microparties”. But this vote was spread out over multiple parties; few won a primary vote of more than 2%. Most won less than 1%.</p>
<p>In a lower house contest, such a paltry vote would not translate into winning seats. The Senate electoral system, however, is a proportional system that utilises the transferable vote. This means a ballot may be counted for its primary value, then for its “surplus” value, and then for its value as a preference. </p>
<p>Thus, Senate elections can give parties other than Labor, Liberal and National a chance of winning a seat.</p>
<h2>What might change mean?</h2>
<p>The presence of parties like the Australian Motoring Enthusiasts Party in the Senate following the 2013 election appears to have been the last straw for critics of the group voting ticket system. </p>
<p>Change – justified on the grounds that there is something not quite right about such extensive microparty representation and so something needs to be done to curb it – <a href="http://www.theguardian.com/australia-news/2016/feb/12/senate-voting-changes-coalition-wins-over-nick-xenophon-and-greens">was negotiated</a> by the Coalition, independent senator Nick Xenophon and the Greens.</p>
<p>This signals that the Greens now see themselves as part of the mainstream party system. It appears to assume that Green candidates will still get elected even if the flow of Labor surplus guaranteed under the present system – provided Labor chooses to preference the Greens – will be denied under the proposed changes.</p>
<p>If the government’s changes are passed, a leap in the informal voting rate will occur. <a href="http://aec.gov.au/About_AEC/research/paper10/index.htm">Research into informal voting</a> by the Australian Electoral Commission notes the relationship between rising rates of informal voting and complexities in a voting system. The system will thus go back to disenfranchising voters (most likely from lower socioeconomic backgrounds) in ways that it did prior to the Hawke government’s 1983 reforms.</p>
<p>There are better ways to mitigate the power of the party secretariats in the preference wheeling-and-dealing process. In <a href="https://www.vec.vic.gov.au/Voting/StateElections.html">Victoria’s upper house</a>, voters can still vote for a group voting ticket or they can give as few as five preferences below the black line. </p>
<p>This doesn’t completely do away with the group voting ticket. But it does try to give voters a viable option to go their own way by reducing the complexity of voting below the line.</p>
<p>Victoria enfranchises voters by simplifying the system. It is a good principle. It ought to be applied to the federal sphere as well.</p><img src="https://counter.theconversation.com/content/55027/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nick Economou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Those who do understand the Senate voting system have the potential to wield some influence both in its conduct and in debates about how it might be reformed.Nick Economou, Senior Lecturer, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.