Understanding that you have two votes, and what each is for, is fairly straightforward. But once the votes are in, what happens?

New Zealand is making MMP up as we go along. We have what is called a ‘freestyle bargaining’ approach to government formation. There are no rules about how to approach it, who must be involved, or what timeframes must be adhered to. The first bloc of parties to tell the Governor General that they have 61 votes for ‘confidence and supply’ has the right to form a government. Confidence and supply refers to two minimum things a government must do to stay in power: ‘supply’ is the ability to pass its budget, so government spending can continue, and ‘confidence’ means surviving a ‘vote of no confidence’ in the House.

Some of our MMP governments have been innovative, involving for example support partners with Ministerial posts but not bound by collective Cabinet responsibility, who are free to publicly disagree with government policies. National and the Greens signed a memorandum of understanding in 2009, in which both parties agreed to work on policies including home insulation and energy efficiency. John Key put together a series of ‘surplus majority government’ arrangements with more support parties and votes than necessary to survive, giving his government the option of tailoring different combinations of supporters for each legislative reform.

New forms of creativity may be used to facilitate the formation of a workable government following election 2017.

Does the biggest party get the first chance to form the government?

No. There is no constitutional or legal requirement that the largest party be included in the government, nor that they have first go at forming one.

What about convention? MMP is relatively new and so convention gets made and added to, election by election. When Winston Peters has previously been in a position to decide whether Labour or National form the government, he has stated the principle of giving preference to the largest party. But this is his own preference, it is not a rule, and it does not bind any other party or parties. Peters has been coy about what he will be guided by in 2017.

What about perception? If enough commentators state that National, as the largest party, has more right to form the government than Labour and the Greens, and this becomes accepted by the public as true, a Labour-Green government will have less legitimacy in the eyes of the public. But this is FPP thinking, not MMP thinking. According to the logic of MMP, any bloc that gets the support of 50+% of the party vote has the support of 50+% of the voting public, and therefore it has a right to govern, no matter how many parties combine to reach that figure. Contrary to John Key’s claim in the New Zealand Herald, majority rule does not mean the largest party gets to rule.

Could we be in for another election, say, in November?

This is possible, if a stalemate is reached, but unlikely in my view. None of the parties want the effort, money or risk involved in another election so soon, and nor does the public. A working government arrangement will eventuate because all parties are motivated to arrive at one.

Can we have a minority government?

Yes. Minority governments have been common under MMP. A government just needs to survive confidence and supply votes in the House. In a parliament of 120, it needs 61 votes. But these votes can come from support parties who are not part of the government. Recent examples include the 2005-2008 term when Labour formed a minority coalition government with the Progressives, and had confidence and supply agreements with New Zealand First and United Future (in exchange for Ministerial posts outside Cabinet), as well as the Greens. Despite the ‘surplus majority government’ label, John Key’s various administrations were minority governments, as the multiple support parties were not bound to vote for National’s legislative programme outside of confidence and supply, and did not sit around the Cabinet table.

Does The Opportunities Party (TOP) deserve to be in parliament more than Act?

Some TOP supporters on Twitter have claimed their party – with 2.2% of the provisional vote – deserves to be in parliament more than Act, which only gained 0.5% of the party vote.

Firstly, does Act deserve to be in parliament given their low party vote? Did David Seymour get re-elected as a result of a ‘dirty deal’? I think he deserves his win. No one held a gun to the heads of Epsom voters. They voluntarily voted for David Seymour as their electorate MP, against high profile candidates: National list MP Paul Goldsmith, Labour list MP David Parker and Barry Coates, list MP for the Greens. Possibly some voters were happy to have an additional MP based in the electorate while others may have thought Seymour, in particular, is an effective local representative. For whatever reason, Seymour won an electorate so he deserves to be in parliament. Was it a ‘dirty deal’? I’m not sure what that phrase means as all parties operated under the rules. National stood a candidate, voters had a choice, they chose Seymour.

Secondly, was it unfair that TOP missed out, when 48,000 voters wanted them in parliament? In other words, is the 5% threshold too high? That Act only scored 0.5% of the party vote while other parties such as TOP won more, but were denied representation, is an argument to lower the 5% party vote threshold. The threshold is designed to stop a proliferation of small one-seat parties and make it easier for a stable government to be formed. But a high threshold reduces proportionality, it discounts votes, and it creates a very high hurdle for new parties to get established and challenge the status quo. How high is that hurdle? So high that no new parties have won parliamentary representation since MMP, unless they were off-shoots of existing parties or were created by former MPs. (The Greens are a bit of an exception with their Values roots, but they entered parliament first as part of The Alliance, which had former Labour MP and president Jim Anderton as its leader.) Lowering this threshold was a recommendation of the 2012 review of MMP. It needs to be lowered because it wastes votes; it needs to be lowered because it has, so far, made it impossible for (completely) new parties to make it into parliament.

The Specials!

Special votes make up around 15% of total votes and haven’t been counted yet. They could change the distribution of seats – but probably only by a small amount (if at all), as explained here. If the specials do change the distribution of seats, past experience indicates it will be to the benefit of the Greens at the expense of National.

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Once the final vote tally is in, a government will be formed. This latest ‘freestyle bargaining’ round means it may be an arrangement we haven’t yet seen, contributing to the evolving history of MMP government in New Zealand.