A Supreme Court declaration on the voting age is a moral and tangible victory for Make It 16, but changing electoral law requires 75% of MPs to vote in favour and that currently looks unlikely.

What the Supreme Court ruling actually said about the voting age

Contrary to a few jubilant takes yesterday, the Supreme Court did not say “yass my 16 and 17-year-old kweens”, nor make a decision in favour of 16 and 17-year-olds having the right to vote. What it did do was grant a declaration that the provisions of the Electoral Act and of the Local Electoral Act which provide for a minimum voting age of 18 years are inconsistent with the right in s19 of the Bill of Rights to be free from discrimination on the basis of age. The Supreme Court said the Crown had not yet justified the age limit, but it could later show it to be justified. 

The Make It 16 group, who have been advocating for lowering the voting age to 16, took a case to the High Court and the Court of Appeal earlier this year but failed in its bids to get a declaration of inconsistency. The Appeal Court actually agreed there was no justification to exclude 16 and 17-year-olds from voting but stopped short of making a declaration, arguing it was an “intensely and quintessentially” political issue. Justice Ellen France said the Court of Appeal was wrong not to make a declaration and granted the appeal. Getting the judgment from the Supreme Court is not just a moral victory for Make It 16. It’s a tangible result that requires a response from parliament. 

Why does it require a response?

The declaration forces action. Any declaration of inconsistency with the Bill of Rights requires:

• the attorney-general to notify the House of Representatives of the court’s declaration of inconsistency within six sitting days after the declaration becomes final; and
• the minister responsible to present the government response within six months of the attorney-general notifying the House.

That’s a new thing, enabled by the passing of The New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill in August this year. 

What it doesn’t mean is instant voting rights for 16 and 17-year-olds. A declaration does not affect the validity of an Act, or anything done lawfully under that Act. Nor does it require parliament to pass a law allowing 16 and 17-year-olds to vote.

What happens now?

In response to yesterday’s judgment, prime minister Jacinda Ardern said legislation will be drafted for making the voting age 16 after the finding of the Supreme Court. Because this has to go to the select committee anyway as part of the government’s response to the declaration, the prime minister said “You might as well put alongside it the ability for parliament to make a decision. It takes no extra time, really, as a result.” That means it will be taken to the house for a vote. 

Labour has a majority in the house –could they just make it so?

No. Because it relates to a change in electoral law, it requires a supermajority (75% of MPs) to pass. If it did pass, it would not be enacted in time for the next election, circumventing possible accusations of changing law to favour one party at the next election. Concurrently, there is existing work underway to review our electoral law, looking into issues such as the voting age, political donations and the length of parliamentary terms. The voting age, the term of Parliament and provisions relating to how electorates are drawn up require a supermajority. Anything else in the Electoral Act (like political donations) can be changed with a bare 50% majority.

What about a referendum?

That is another way to get consensus on electoral law change. As the prime minister pointed out in her post-cabinet press conference yesterday, the people most affected can’t currently vote, so you have to question whether a referendum on franchise where the disenfranchised can’t vote is fair or useful. Secondly, a referendum result in favour of lowering the voting age would still require parliament to change the law, which would still require a supermajority. The only thing a referendum would add is a tangible showing of where the over-18 population stands on the matter.

What about that recommendation to lower the voting age for local government elections?

The Future for Local Government review proposed a raft of changes recently to boost participation in local elections, one of them being lowering the voting age for local government elections to 16. That wouldn’t require a supermajority to pass. It could be passed with a simple majority, which the government currently has, meaning we could have a scenario where 16 and 17-year-olds can vote in their local body elections, but not in the general elections.

What does evidence say about lowering the voting age?

Some of the countries that have a voting age lower than 18 include Argentina, Austria, Brazil, Ecuador, and Greece. Some German states have allowed 16-year-olds to vote, Norway ran experimental studies at the municipal level in 2011 and 2015 and in Scotland and Wales the voting age is 16 for local and devolved government elections (Scottish parliament and the Welsh Assembly).  

Here’s a few findings from the first ever review of studies across a range of countries that have lowered the voting age published in Oxford University’s Parliamentary Affairs journal in 2021:

• Impact on voter turn out
  “We may not yet know the full effect of lowering the voting age on the still young generation of voters who had the chance to vote when they were 16 or 17. However, no negative consequences for turnout from lowering the voting age to 18 were found at these more current reductions to 16; rather there were statistically significant positive effects.”
• Does it create political advantage for one party or another?
  “On this question, the evidence is quite mixed from one country to the next, and even within countries. Young people may switch their vote more often than older voters. In most countries, the young people tend to support centre-left or green parties in somewhat higher numbers than adults, but this is by no means an iron law and support for centre-right and right-wing parties amongst young voters in the last Austrian federal elections was high.”
• Good or bad overall?
  Researchers could not find negative effects of  lowering the voting age on young people’s engagement or civic attitudes in any of the countries where data was available. Enfranchised 16 and 17-year-olds were often more interested in politics, more likely to vote and demonstrated other pro-civic attitudes. “Furthermore, where we have data on public views on the topic, we see support for votes at 16 increase significantly. This may be due to the experience of seeing young people engaged or the influence young people may have on their parents, especially when having had civic education that involved discussions about politics.”

What are the odds of lowering the voting age to 16 in New Zealand?

Pretty bad at this point. Recent polling from Talbot Mills doesn’t suggest there’s a lot of support from the public for this. The determination as to how MPs might vote is still up in the air. It could be a conscience vote but that is up to the Speaker. The National and Act parties aren’t supportive and their votes would be required to achieve a supermajority. National party justice spokesman Paul Goldsmith said allowing 16 and 17-year-olds to vote was an issue for parliament to decide, but opposed the idea. “We disagree with the conclusion that the voting age that has been in place for more than a century is unjustified,” he said. The voting age of 18 has actually not been in place for a century, it was set at 18 in 1974. Act party leader David Seymour said “We don’t want 120,000 more voters who pay no tax voting for lots more spending. The Supreme Court needs to stick to its knitting and quit the judicial activism.” An analysis of IRD figures in 2019 from tax consultant Terry Baucher proves that 16 and 17-year-olds do pay tax. Whether they’ll be able to vote in general elections is a question that can now only be answered by our House of Representatives.