Michael Atkins | Parliamentary submission on proposed electoral thresholds

The question of electoral thresholds has been raised in legislation proposed for local government elections. It is therefore necessary to address some of the key principles in respect of national and provincial elections.

Essentially, there are various pragmatic justifications raised in favour of electoral thresholds. However, these have to be set against some core democratic and constitutional values, notwithstanding the fact that electoral thresholds are deemed appropriate in various other jurisdictions.

Proportionality

One of the first concerns regarding electoral thresholds is that it disturbs proportionality, with the inevitable bias in favour of larger parties that is true of the recalculations discussed below.

The typical response to this concern is that sections 46 and 105 of the Constitution require an electoral system that results, “in general in proportional representation, and that this therefore allows scope for some deviation.

While this is true, it is also true that the constitutionality of deviations from proportionality has not been tested. At the very least, if any concrete proposal in this regard is considered, then there should be an investigation into the extent of the distortions from proportionality, and the outcomes of such investigation should be tested against the constitutional requirement.

Because numbers are difficult for many, it should not therefore be the case that numerical considerations are disregarded in the contemplation of electoral systems.

The Logical Contradiction of Independent Candidates

It is absurd to allow independent candidates to secure election (possibly with relatively low vote totals in some constituency elections), but to deny parties securing representation with far higher numbers of votes.

This contradiction alone should end the discussion.

Disenfranchisement of Voters

The right to vote and the right to fair elections is significantly compromised when a noticeable number of votes are discarded. It is that simple. That is anathema in our constitutional dispensation.

Obviously, the numbers of parties contesting elections would tend to diminish, and the numbers of votes thus discarded would tend to reduce over time. But this would come at the extreme cost of limiting the right to make political choices.

Detracting from Multi-party Democracy in a Diverse Society

In a diverse society, it is natural that smaller political parties may appeal to (and hence “represent” the interests of various groups at least partly on the basis of belief, religion, language, economic or employment status or geographic or ethnic distribution. Other criteria such as social mores, environmental or other concerns could also find expression in smaller political parties.

Vote thresholds work as a direct counter to such direct representation of the many different interests that may exist. They are also at odds with the sentiment of section 236.

A counter-argument might be that reducing our political space to a handful of parties could have the effect of forcing such parties to become a broader church in respect of these issues, but it is equally possible that diverse interests could be entirely lost in the process.

Unfair Recalculations

In my submission to the COGTA Portfolio Committee in respect of the Municipal Structures Amendment Bill, I showed that a 1% vote threshold in the 2021 local government elections would result in the ANC gaining 64% of the forfeited seats while holding an aggregate of 52% of the original seats allocated, while the DA would gain 22.7% of the forfeited seats while holding 17.1% of the original seats.

Limitation of Rights and Rational Purpose

Clearly, and vote threshold has the effect of limiting the rights to vote, to make political choices, to fair elections, and to equality before the law (and potentially to dignity).

Therefore, a proper section 36 evaluation should be carried out before such legislation is passed. There is no question that these rights are limited, and it would be unjust to pass such legislation without due consideration, and force interest groups to follow the difficult route of challenging this in the courts.

Beyond this, the rationality of vote thresholds must be properly tested. In the discussion surrounding troubled local government coalitions, much is made of the “chaos” that has ensued in certain municipalities. This appeals to the emotions, but not so much to a rational analysis.

The harm arising in some of these municipalities is routinely ascribed (without proper substantiation) to smaller parties. However, the decisions taken by these municipal councils would not be possible without the support of larger parties. It can equally be argued that the “chaos” and instability is a consequence of the behaviour of larger parties more than as a consequence of the mere presence of smaller parties.

And in any event, even if one accepted the premise of smaller parties being a primary problem, the “solution” is to punish all small parties (and their voters) in every location because of the behaviour of some small parties in some locations. This is plainly absurd and unfair. The electorate should be trusted to respond to bad behaviour of parties in subsequent elections.

One can also observe that a 1% vote threshold in the 2021 local government election would have reduced the number of hung local councils from 70 to 64, while eliminating smaller parties from all 213 local councils.