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Source: The Conversation (Au and NZ) – By Andrew Geddis, Professor of Law, University of Otago

The return of COVID-19 community transmission, with Auckland back in a level 3 lockdown and the rest of New Zealand at level 2, raises real questions about New Zealand’s upcoming general election.

Polling day is scheduled for September 19 but the planned election process would actually start far earlier. All candidates were to be nominated by August 21. Overseas voting was to begin on September 2, with advance voting in New Zealand from September 5 (around half of all voters in 2017 cast their ballot before polling day).

While the Electoral Commission has planned for voting to go ahead under level 2 restrictions, the prospect of having our largest city under lockdown at election time goes far beyond that. It would make it very difficult, if not impossible, for something like a quarter of the electorate to vote.

Unsurprisingly, therefore, there are calls for rethinking the September 19 election date.

How do we change the election date?

Up until the issuing of the election “writ”, which is the official instruction to go ahead and hold an election, the prime minister alone gets to decide when the election will be. Although the governor-general formally issues this writ, she does so purely on the prime minister’s advice.

That is why when Jacinda Ardern announced in late January that we would be voting in September, everyone immediately noted the date in their calendar as “election day”.

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However, that writ has not yet been issued and is not planned to be until August 16. As such, there is not yet any legal requirement that September 19 be our polling day.

Should the prime minister conclude the planned election date is no longer tenable, she can simply nominate another Saturday instead. It will have to be a Saturday, because by law New Zealand elections must fall on that day. Otherwise, she is free to pick any date until early December, by which point the law says an election must be held as parliament’s three-year term elapses.

Jacinda Ardern in front of audience
Prime Minister Jacinda Ardern at the Labour Party campaign launch four days before community transmission put the election date in doubt. AAP

Time is getting tight

However, if parliament is dissolved, some of that flexibility disappears. By law, the governor-general must issue the election writ (including the polling day) within a week of such a dissolution.

That is part of the reason why Ardern postponed today’s planned dissolution of parliament until at least next Monday. Doing so buys a little more time to decide whether a September 19 date is still feasible.

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Not that much time, though. If candidates are going to be nominated, ballot papers readied and distributed, and polling places set up and staffed, then a decision on the election date really has to be made early next week.

Delaying much beyond that point will not leave enough time to put the actual mechanics of the election in place for September 19.

What happens under a tougher lockdown?

What, then, if the prime minister decides the election should go ahead as originally planned, but the COVID-19 situation does not improve (or, heaven forbid, worsens)?

Well, amendments to the Electoral Act that came into force earlier this year address just such a possibility. These provisions permit the chief electoral officer – not the prime minister or any other political figure – to halt voting at polling stations due to “an unforeseen or unavoidable disruption”, which includes the issuing of an epidemic notice.

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Voting can be put on hold for an initial period of three days, with the suspension able to be extended for a week at a time following consultation with the prime minister and the leader of the opposition. There’s no limit to how long such a suspension can last; the normal election timetable is suspended while it is in place.

What about electronic voting?

So, if COVID-19 makes it too unsafe to have people going to polling places, the election can be delayed until it is safe. The Electoral Act now also allows the chief electoral officer to implement “alternative voting processes” which would allow for uploading ballot papers electronically, as can be done for overseas voters.

Or, mobile voting booths could be permitted to bring the vote to people who are self-isolating, rather than require them to visit school halls or supermarkets.

Whether or not polling day ought to be changed in the face of COVID-19’s threat ultimately is a question that balances potential health risks, practical considerations and political calculations.

It will likely attract heated discussion in the next few days. But in terms of how it can actually be done, the legal machinery is reasonably clear.

ref. By delaying the dissolution of parliament Jacinda Ardern buys time on the election date – but only a little –