South Africa’s new voting system (Paid editorial)

South Africa’s new voting system: imparting broader system deficiency

Amidst failure some consolation may be drawn from a system that repairs inadequacy and prevents recurrence – the means at our disposal to uphold these are being prodded at by an apparent exemplar of shortcoming in need of fixing on the fly.

The Electoral Amendment Act (01 of 2023) was assented to on 2023/04/17. It features an improvement on the bill by curtailing wasted votes, with independent candidates competing for seats by sequence of highest vote count. Many issues persist and different challenges are likely following the Act’s promulgation to bring about the new voting system – whose translation of votes into seats is of specific interest, as stipulated by items 1 to 13 of Schedule 1A to the Act. Within this confined scope, failures and remedies of three types are discussed: an omission to be reversed, several mendable errors to be corrected, and the superfluous to be abolished; with extra points added on.

A: The Act is silent on delegating independent candidates to the National Council of Provinces. The Constitution may require amendment, as contended in a memorandum accompanying the draft bill, yet their exclusion is also avoided by independents forming a party, or by letting the Act create one for them, or by deeming their collective to be one, suggesting that attentively drafted definitions may suffice. Carve out ‘political party’ within the ‘party’ definition, insert (automatically qualifying) ‘default grouping’ next to it to house independents, and the encompassing ‘party’ definition captures their indistinguishability as nomination avenues, one established by the Act that fails to recognise its likeness to others: they all offer ‘lists of nominees’ to the electorate. For the partitioning of such lists (supposedly already mutually exclusive and exhaustive), involve expertise covering set theory and draw comparisons from demarcation exercises. Challenge the Act to have this omission reversed, possibly aided by results below.

B: Both the less complicated provincial elections and the regional seats component of the national election allow for candidates to appear on the same ballot paper as political parties. With the objective of proportionality, quotas are duly specified in items 11(a) and 5(a+b), then fittingly applied in items 11(b) and 5(c), at the conclusions of which an intervention is needed: at this juncture both processes achieve ‘near proportionality’ for political parties, with some short one seat only and the remainder already proportionally allocated and at risk of disproportionality from excess allocation of seats in the aggregate. Intervene by testing for proportionality on aggregate seat allocations: rank political parties by highest surplus votes (targeting the ones most likely short a seat); then allocate one more seat iteratively down the sequence whilst ensuring that the updated aggregate seat allocation ratio does not breach the target ratio, to conclude in verification and the disregarding of all political parties from processes to follow. Or, alternatively, before proceeding, by limiting the number of seats that may be allocated to achieve proportionality at the end – intentionally preventing incursive overhang into independent candidate seats.

B1: Wasted votes are curtailed in items 11(c) and 5(d) where an aggregate proportionality deficit for political parties unfortunately turns into excess. This is important to recognise as deviation from the objective may fail a rationality test. Challenge the Act to insert verification, for proportionally allocated political parties to be disregarded instantly.

B2: Challenge the Act (item 13) for failing to derive proportionality information off open lists. The nomination avenue shares a one-to-many relation with its nominated candidates. For proportionality a vote is counted as if cast for the nomination avenue; for popularity it is counted for the candidate.

B3: Challenge the Act for restricting political party candidates to closed lists in items 13(2) and 13(3) and not allowing them to be fielded. As a remedy, allow the closed list to be utilised by political parties appearing as a single entry on the ballot paper, or if they prefer to have candidates directly elected by fielding them on the ballot paper.

B4: Each region may accommodate many candidates; conversely, all candidates (including independents) should be restricted to a single region, the one covering the electoral district where the candidate is registered to vote, for an unambiguous association. Challenge item 3(4)(b) of the Act read with item 5(k), allowing wasted votes to persist.

B5: Challenge the Act for failing to stipulate a single ‘region-aggregate’ quota in item 5(a) applied universally across regions to ensure equally weighted votes – a priority objective not achievable differently. When a candidate in a partitioned region is allocated a seat then it becomes the region’s as a consequence of point B4’s unambiguity on which region is being represented. Consequential seat numbers per region may be estimated (instead of fixed) by the Commission from prior election results and other data. The uncertainty that remains may be absorbed or compensated for separately. Challenge the Act for fixing regional seat numbers in item 4 with the objective of restricting candidate numbers appearing on lists in item 3, which may be rational in isolation but is also manageable differently: Apply stricter scrutiny and strike it down for not being a compelling objective and for employing means restrictive of equal vote weight.

With the above corrections applied, votes carry equal weight across regions, and (in the provincial and regional seats part of national elections) independents are accommodated on an equal basis, which are deemed preconditions for proportionality that is also achieved and verified as processes unfold: as a corollary there is no/zero risk of seat overhang.

C: Depleted purpose is left for the closed list compensatory seats part of national elections.

C1: As for the compensatory election, challenge the Act for stipulating any non-zero number of seats in item 1(b) on grounds that an election conducted by open proportional list is sufficient: any allocation made by the compensatory election over-allocates seats to political parties, that deviates from the objective, which may fail a rationality test. Closed lists are not discarded but accommodated onto open ballot lists (point B3) for habitual multiple candidate endorsement by single tick.

C2: Also challenge the Act on whether the ruling of the Constitutional Court is exonerated by narrowing the exclusion of adult citizens, other than through their membership of political parties, to persist in sub parts of any election (supporting point A above). Independents should partake where correction for proportionality is needed; except that correction follows deviation that is hardly compelling, absent context, and obsolete in this instance. As a remedy, change the wording “Half the seats are…” for item 1(a-regional) to read “All seats are…” while for item 1(b-compensatory) to read “No seat is exclusively…” ushering out the superfluous.

The Act establishes an Electoral Reform Consultation Panel. Each matter conscientiously and successfully challenged, that was opposed, becomes testament to every matter on which Parliament has failed or might soon have failed society. Challenges gather stakeholder input, scrutinize it, and offer clarity, also to the Panel in performing its tasks.

D: The Constitution ensures multi-party elections, independent candidates expand on voter choice, and multi-member regions are about to be utilised. A single vote at grouping level is current practice; specifying a single vote when directly voting for candidates appear unnecessarily restrictive and should be challenged for consideration by the Panel. Ideally, the voting system should be adaptable to correctly interpret and exhaust any (valid) voter preference whether a single tick or expressing broader approval or sequence via any number of (equally weighted) multiple selections.

E: Better ways may exist to ‘fill all seats’ with surplus votes short of a quota, such as gradually lowering the universal quota set at election level to allocate more and more seats by iterative recalculation, and to stop at the level prior to allocations exceeding their target number. All contestants benefit equally from the single lowered quota.

Not guided by point E, the Act reveals inconsistency: the sequence of highest surplus votes diverges into one of highest average numbers of votes per seat, of at least one, awarded by item 6(b) and updated by 6(c). It bisects political parties into ones better off contesting as independents and others clearing the hurdle – the smaller they are the further forward in line to receive one seat they are put (courtesy of the inverse relation), then to be directed further back than peers, who reap seats more frequently the bigger they are. The outcome is uncertain. Methods may have variations correcting for proportionality; by contrast the Act introduces an anomaly: The impact of the divergent is amplified through stipulating an unusual quota in item 6(a) extending its reach to cover the completed regional seats election, while patching up over-allocations of seats in item 6(d) by deducting numbers previously allocated based on the standard method. With bias against the big (ample small peers qualifying), expect deficits of around one seat per region per big political party. With bias against the small (proliferation of the disqualified), it is doubtful whether those scraping through with one seat in the regional election will consistently secure at least one seat in the overlapping compensatory election to avoid being allocated ‘negative-one’ compensatory seat.

Since the dawn of time persons were stopping in their tracks, changing their ways, their allegiances, and starting to pursue virtue; contributing to society; securing fruition; restraining travesty; paving the way. Add verification for proportionality at each of its iterations, and the anomaly matters no more. Develop the means to squeeze out excessive parts of elaborate schemes, and rebuff many stowaway ulterior motives. Allow access to stricter scrutiny, as may be deemed suitable beyond the rationality test, and forestall possible prestidigitation in legislative processes.

F: To set precedent and deter recurrence, challenge the quota formula in item 6(a) and/or the deduction of allocated seat numbers in item 6(d).

The challenges described above are aided by the mathematical properties of proportionality and of voting systems, for which rationality tests go some distance. Not all administrative remedial action may be as fortunate.

Thomas R Labuschagne – 2023/07/04