Electoral Act 1993 – s 180(5)(a) recount of votes – recount process – different result from the original election result – s 180(10) order for amended declaration result granted
Re an Application for a Recount of Electorate Votes in the Māori electorate of Tāmaki Makaurau  NZDC 24875 per Judge K D Kelly
Peeni Henare stood as the Labour Party candidate in the Māori electorate of Tāmaki Makaurau until the results of the general election were declared on 3 November 2023.
On the official results, Takutai Kemp of Te Pāti Māori won the Tāmaki Makaurau electorate, having received 10,050 votes. Peeni Henare received 10,046 votes.
On 8 November 2023 Judge Kevin Kelly ordered a recount to be undertaken of the electorate votes for the electorate, pursuant to s 180(5)(a) of the Electoral Act 1993. The recount took place on 13-15 November, in the presence of Judge Kelly and representatives of the candidates (scrutineers), as well as employees of the Electoral Commission.
Judge Kelly outlined the process of recounting the votes that took place.
The recount began with the ballots being removed from sealed envelopes. The ballots were manually counted, recorded in worksheets, captured electronically and then a results sheet was produced.
In the case of some polling stations, the votes in the official count were found to have been attributed to the wrong candidate. Judge Kelly said the reason for this was unclear. Otherwise, there were some minor differences in numbers between the official count and the recount but these were all able to be reconciled on inquiry.
In the case of some larger polling stations, Judge Kelly directed the recount to be done up to three times to ensure any discrepancies were reconciled.
The result sheets for each polling station were then used to create certificates of results which were again checked before Judge Kelly and the returning officer signed them off in the presence of the scrutineers. The ballots were then sealed in their envelopes.
The judge then outlined the most common errors that resulted in informal votes, including voters casting two candidate votes or voters casting only party votes.
Judge Kelly also noted there were 312 disallowed special votes. Of the disallowed special votes:
- 220 were disallowed because the voter was not enrolled;
- 4 were disallowed because the vote was received late;
- 25 were disallowed because they were not signed by an authorised witness;
- 12 were disallowed because they were not signed by the voter;
- 6 were disallowed where the grounds for making a special vote were not set out;
- 41 were disallowed because they were dual votes;
- 3 were disallowed as post-writ deletions; and
- 1 was disallowed because no ballot paper was enclosed.
The recount of the electorate of Tāmaki Makaurau resulted in variations to the official declaration of results made on 3 November 2023, with Takutai Kemp receiving 10,068 results and Peeni Henare receiving 10,026 votes. Accordingly, pursuant to s 180(10) of the Electoral Act 1993, the Electoral Commission was ordered to give an amended declaration of the result of the poll. However, no change resulted in terms of the successful candidate for the Tāmaki Makaurau electorate.
Applicable principles: verification of election results — independent oversight of electoral process — post-election reviews transparency in recording and documenting election results — scrutiny in voting coun process
Held: Order granted to the Electoral Commission to give an amended declaration of the result of the poll for the Tāmaki Makaurau electorate.
Jamie Dierick is a law clerk working for an Auckland criminal defence barrister