Oh dear, it’s Bradfield again

It’s exactly two months since Australia went to the polls, and results took most of that time to come in. It was only last week that I reported on the last set of statistics released, and it’s less than a month since the last actual result was declared: not, as is usual, in the Senate, but in the lower house seat of Bradfield, which Teal independent Nicolette Boele narrowly won from the Liberals.

When counting of primary votes finished in Bradfield, on 19 May, Boele led on the two-candidate-preferred throw by 40 votes. During the remainder of that week the full distribution of preferences was conducted, at the end of which she trailed by eight votes. Over the following week and a half the electoral commission held a full recount, which put Boele back in the lead with a final margin of 26. (This post from Kevin Bonham gives the full saga.)

That close a result invites thoughts of a legal challenge, which under section 355 of the Electoral Act has to be lodged within forty days. That period expires in a couple of weeks, and sure enough the New South Wales Liberals are debating whether or not to proceed with a challenge – and if so, how they’re going to pay for it. The Sydney Morning Herald reported this week that local party members are keen for the party’s new interim administration to back unsuccessful candidate Gisele Kapterian in a petition to the court of disputed returns.

It’s not impossible that such a challenge would succeed, but it doesn’t seem likely. In the most notable recent case, in 2007, Labor challenged the result in the seat of McEwen, which it had lost (after a recount) by 12 votes. The court reviewed the commission’s decisions about formality of votes, resulting in a net difference of 19; unfortunately for Labor they were in the wrong direction, so it ended up losing by 31.

Since then the commission has reissued and clarified its rules in line with the court’s opinion, so getting a change of that size just out of reviewing ballot papers would be very unusual. And the Liberals seem to be short of any other rationale; there has been no suggestion of a doubt as to KapterianBoele’s eligibility, as with the notorious section 44 cases of recent years (particularly in 2017-18).

For some, the fact that the initial result differed so much from the recount is a cause for suspicion, but in fact it’s just what you should expect. Most of the difference comes from votes that had initially been let through being found to be informal; at the stage when preferences are being distributed, the votes being checked are those of the candidates who are eliminated, and since Boele did better on preferences, votes that were knocked out then were more likely to be for her.

At the recount stage, the reverse applies: the minor candidate votes have already been thoroughly checked, so votes knocked out are more likely to come from the top two. Since Kapterian led on primaries, that means she had larger potential losses there, and that’s exactly how it turned out.

But the biggest problem for the Liberals is not finding some ground for a challenge (or paying for it); the problem is what they would hope to achieve by doing it. Although the court would have the power to simply declare Kapterian elected if it found sufficient reason, everyone accepts that’s not going to happen. The most they could hope for would be that the election would be declared void and re-run.

And in that case the most probable outcome is that the voters, resentful of being made to vote again and seeing the Liberals as sore losers, would deliver a swing to Boele. That’s what happened in most of the section 44 cases; most pointedly, it’s what happened in 1996 when Labor overturned the election of Jackie Kelly as member for Lindsay on a section 44 technicality. With the Howard government in its honeymoon period she got a swing of 5% in her favor and went on to hold the seat for another 11 years.

It’s not as if the last two months have been a time of good publicity for the Liberal Party in New South Wales, or indeed anywhere else. A by-election loss now would just add to their woes. Faced with a daunting task of rebuilding their organisation and their reputation, they would be well advised not to waste precious resources on annoying the voters of Bradfield.