Sorry, but you can’t go in front of a court after an election (or referendum) and simply say, ‘I don’t like how things were done – so let’s have another go’, writes Andrew Geddis.
The narrow “no” vote in September’s cannabis referendum was A Really Bad Thing. I recently summarised my thoughts on it for a predominantly Australian academic audience:
Not only is the ‘no’ vote therefore a wasted opportunity to establish a comprehensive, harm-reduction focused policy response, but it perpetuates a criminal justice approach that is frankly racist towards Māori. Given that the harms of cannabis criminalisation fall disproportionately on socially excluded social groups – Māori in particular – it was wrong of the government to allow the prejudices of a bare majority to effectively veto its amelioration. Braver political leaders would simply have legislated and then explained to the public why it was the right thing to do.
I self-quote here not just to burnish my liberal credentials (and ego, of course). Rather, I do it so when I tell you that a legal challenge to the cannabis referendum result filed yesterday in the High Court has zero chance of success, you know that I speak from the head and not the heart.
The challenge is brought under the Referendums Framework Act 2019, which was passed to enable the cannabis and end of life choice vote to take place. It permits a group of 200 or more people to petition the High Court to inquire into a referendum in order to determine if there were “irregularities in the conduct of the referendum or of any person connected with it [that] materially affected the result”.
Should convincing evidence of such irregularities be produced, and the court believe that these materially affected the result, then it can declare the referendum to be void. In that case, a new referendum vote has to be held within seven months of the declaration being made.
You can see why such a procedure exists. After all, if (say) post-election video tape emerged of (say) a group of elderly folk wearing “Just Say No!” T-Shirts stuffing photocopied bits of paper into various ballot boxes, you’d want some way to revisit the referendum result and determine if it is valid. And if there is real doubt about that question, then the only way to expunge that doubt is to hold a full do-over.
However, the just-filed petition doesn’t seem to allege any such direct wrongdoing in the cannabis referendum process. Indeed, based on the Radio NZ Checkpoint interview with one of the people behind the challenge, Blair Anderson, it’s hard to tell exactly what it does allege.
There was mention of misleading advertisements from those opposed to legalising cannabis (albeit that a bunch of these advertisements passed muster with the Advertising Standards Authority). There was a complaint that the Electoral Commission had not done enough to respond to such misleading ads. There was finger pointing over the media’s failure to cover the Aotearoa Legalise Cannabis Party’s view on the referendum. There was (probably justifiable) anger at the NZ Medical Association’s outdated statement of opposition to the Cannabis and Control Bill. There was even upset that the bill set 20 as the legal age for purchase and possession, not 18.
All of which may be perfectly fine things to grump and moan about. But the problem is that while the referendum legislation appears to speak in general terms about reviewing “irregularities”, the actual grounds on which a court can revisit a referendum result are much, much narrower. That is because the process it sets up mirrors the “election petition” process for challenging election results under the Electoral Act 1993.
In a decision on an election petition back in 2009, the High Court noted the limited nature of its jurisdiction in such proceedings:
[Electoral Petitions] relate to the processes of the election or returns in each electorate and the existence of any element of unlawfulness which relates to those processes. On any such petition, the Court is concerned with corrupt or illegal practices as defined by the Act, issues directly affecting the outcome of the election such as the eligibility of candidates and electors, the counting of votes, or the conduct of Returning Officers.
In other words, you can’t go in front of a court after an election (or referendum) and simply say, “I don’t like how things were done – so let’s have another go.” You have to point to specific failures of those involved directly in the voting process to comply with the law relating to that process and say how these failures render the result unreliable.
None of the things mentioned in the Checkpoint interview qualify as such failures. Maybe people putting out misleading advertisements in relation to the referendum ought to have been illegal – but it wasn’t, so the existence of such ads isn’t something the court can address. Maybe the Electoral Commission ought to have had a legal obligation to combat such misinformation – but they didn’t, so a failure to do so isn’t something the court can address. Maybe 18 would be a better age for accessing cannabis – but the government’s proposed bill said different, and that isn’t something the court can address.
In short, this legal challenge to the referendum stands no chance of success in court. If the 350 people who apparently have backed it are hoping that three High Court judges might overturn the “no” vote’s 67,662 majority, they are going to be sorely disappointed.
Alternatively, if they are simply using this case to try and cast public doubt on the referendum outcome by citing various, nebulous “irregularities” with how it was held, then that’s their prerogative. Provided, that is, they’re happy to be running with the same tactic as Donald Trump.