Winning but losing: why our electoral system needs to be re-thought

If the opinion polls are accurate, it seems certain that the ALP will win more than fifty per cent of the two party preferred (2PP) vote at the upcoming federal election. But will it win government? The nightmare scenario for Labor is that it wins the vote but loses the election, because its vote is concentrated in the 'wrong places', locked up in safe Labor electorates while the Coalition scrapes over the line in the marginal seats.

For example, Antony Green’s election calculator only puts the ALP ahead 75 seats to 73 once it reaches 51.3 per cent of the 2PP, and in fact only gets to the magical 76 seats needed for a majority when it wins 51.5 per cent of the 2PP. Simon Jackman, a politics professor at Stanford University, calculates that Labor needs 52.1 per cent of the 2PP to win - and that’s of course assuming a uniform swing, which is unlikely.

We’ve been here before - in 1998, to be precise, when Kim Beazley’s ALP won 50.98 per cent of the 2PP - but lost. However, any complaints from the ALP were tempered by the fact that positions were the reverse in 1990, when the Hawke Government was returned with 49.9 per cent of the 2PP compared to the Coalition's 50.1 per cent.

How do such outcomes happen? Does it matter? Is there some point at which we are entitled to question the fairness and legitimacy of an election outcome? And is there anything we can do about it?

The answer to the first question is fairly simple. In any single member electorate system, it is quite possible for a party to secure a majority of the seats with a minority of the vote. In theory, you can receive 51 per cent of the 2PP vote in 51 per cent of the seats, and zero per cent in the other 49 per cent of the seats, and win government - with something like 30 per cent of the overall 2PP vote.  While reality is not so extreme, there is no doubt that having too many votes locked up in ‘safe’ seats can work to the disadvantage of any party.

The situation of parties with a minority of the vote winning government is of course the norm in countries with first-past-the-post (FPTP) voting systems, such as the UK, Canada and the US. In Canada and the UK, the existence of more than two major parties means the vote is split three or four ways, and candidates and parties often win elections with 40 per cent of the vote or even less. In the US, both of Bill Clinton’s election victories were minority vote wins, thanks to the independent Ross Perot siphoning off votes from both the Republican and Democrat candidates. And most memorably of course, George W Bush lost the popular vote but won the Electoral College vote in 2000 against Al Gore.

However, in these countries, where voting is voluntary and the FPTP system is long-established, the legitimacy of the outcomes have not generally been questioned - at least not in terms of arguing that winning the popular vote should be the key criteria for forming government (unlike the Bush-Gore tussle over who won Florida).

In the US, most States have a winner-takes-all system for the Electoral College (ie, win the state, win all the Electoral College votes). The popular vote is not only irrelevant, but may not represent 'the will of the people' either. Many citizens will have little incentive to vote in those States where the result is almost certain - ie, a Democrat would be less inclined to vote in Texas and a Republican less inclined to vote in New York, given the hefty majorities expected for the other side in those states. If the US went to a popular vote system for president (similar to France, for example), then turn-out may well be much higher as every vote would be equal wherever it was cast.

In Australia, though, with our system of compulsory and preferential voting, it should be much easier to divine what the people prefer. The traditional explanations in the past for win-but-lose election results were vote weighting and, in some instances, gerrymandering. These generally favoured the conservative parties. At both state and federal level, the ALP won the popular vote on several occasions while losing elections. Sometimes, Labor received more than 50 per cent of the primary vote but still lost. This occurred at the 1954 federal election, for example.

The situation in some states was even worse. South Australia was particularly notorious. In 1962, Labor lost despite winning 54 per cent of the primary vote. Again, in 1968, the incumbent Labor Government lost despite winning 52 per cent of the primary vote, and 53.2 per cent of the 2PP. This result, following years of criticism by Labor about the bias of the electoral system, shamed the Liberals into finally introducing one-vote, one-value. At the next election, Labor was elected.

In Western Australia, the Labor Government won office in 1989 despite winning less than 50 per cent of the 2PP. The losing Liberals did not challenge the legitimacy of the result - after all, it was they who had refused to accept the Government’s one-vote one-value legislation and insisted on retaining vote weighting. In a supreme irony, Labor held on by winning a number of regional electorates that would have been lost if vote weighting had been abolished. Instead, the Liberals racked up big (but useless) majorities in several metropolitan seats and lost the election.

Despite the removal of vote weighting across the country, the chance of anomalous results remains. In South Australia, Labor retained office in 1989 with just 48.1 per cent of the 2PP. In NSW, it is estimated that the Coalition generally needs 53 or 54 per cent to win a majority of seats. And of course Rudd Labor appears to need 52 per cent to win on November 24.

At what point can a losing party legitimately complain that the system is unfair? And when does the election result move from being unlucky, to unfair, to illegitimate? Winning 50.1 per cent compared to 49.9 per cent on 2PP, but losing the election, might be seen as the luck of the draw. But, what if you win 52, or 53 per cent? What if you win 50 per cent of the primary vote, but still lose? As we’ve seen, such scenarios are not fanciful.

One option is to follow South Australia’s lead. After the 1989 election, the Labor Government there held an inquiry. This led to electoral commissioners being required to review electoral boundaries after each election and, more notably, to take into account past voting patterns so that a party receiving a majority of the 2PP would be more likely to win a majority of seats. At the very least, this ‘fairness test’ should be emulated around the country.

In addition, there needs to be a brake on the benefits of local incumbency. The Federal Coalition has greatly increased taxpayer-funded resources for sitting MPs for staff, travel and printing costs, providing a huge advantage to sitting MPs (particularly in marginal electorates). Parties also focus their resources on these seats, allowing 'useless' votes against them to build up in the other parties' safe seats - thus making a win-but-lose outcome more likely. The ‘tyranny of the marginals’ is also skewing spending decisions and producing questionable public policy (such as the Merseyside hospital takeover). It’s time for a re-think on both the electoral allowances as well as the electoral system that makes them so important.

Ultimately, elections are meant to express the people’s will. A fair system would ensure that the party preferred by more than half the population wins government. We should look at the German or New Zealand models, which combine single member electorates with ‘top up’ seats allocated centrally to ensure that the final result in terms of seats reflects the overall voting outcome. A minimum threshold of 4 per cent could be set to reduce the proliferation of too many minor parties.

In the short term, we can only cross our fingers and hope that at this election we get what we vote for - with the party winning a majority of the vote getting a majority of the seats. It’s only fair.