Kerre Woodham: Why is there a reluctance to tidy things up?

Still more election news. It just gets weirder every day really.

The death of a respected and much loved community member in Port Waikato means a quirk of our election process will be triggered. The ACT party's Neil Christensen has died just a week before the election. And that means the electorate vote in Port Waikato will not count on Election Day, however, the party vote will still count.

Now a by-election will be held after the election. That will mean there are 121 MPs in parliament after the by-election, instead of the usual 120. It's an overhang. Why? Well Otago University law professor Andrew Geddis attempted to explain it to Mike on the Mike Hosking Breakfast this morning.

MH: How is it that you get an extra seat, 121 in the Parliament, and then once you hold the by-election, you still have 121? I don't get that part.”

AG: First of all, the reason for the rule is to throw back to our old first-past-the-post days when we only elected people out of electorates. And so if you had a candidate, especially one of the leading candidates, say a National or Labour candidate die, then that could really affect the overall election result. You know, given that people were only elected out of electorates. We just kept the rule.

But under MMP, on election night, 120 seats get distributed by the Electoral Commission. So if someone died, you could just fill that seat with an extra list seat. But because we have this by-election, what's going to happen is we'll fill 120 seats. There'll be an extra list seat added to bring it up to 120. Then at the end of November, we'll have another seat added when the by-election happens, and the new MP comes out of Port Waikato.”

MH: Why don't, when we get the new MP, the list for MP drops out, thus keeping 120?

AG: But that's not what the rules say the rules say.

MH: No, I know that. But why don't we have a proper rule that makes sense?

AG: That would be one way to do it. Or the other way to do it would be to say that unfortunately, things like this happen, people pass away, and so on and so on. And what you can just do is continue the election, elect someone out of Port Waikato because whoever wins that electorate really won't change the overall makeup of Parliament – it will just change whether people get list seats or electorate seats.

MH: But what, if in going to 121 seats if that's the one seat difference in forming a Government?

AG: That is entirely possible. This really could change the overall result of the election for the next three years. It could give the right block the one extra seat they need to govern.

So there we go.

It makes perfect sense as Mike was saying, so you add an extra list seat until the by-election, the electorate MP is elected, you drop off that list person. Doesn't it? I mean change the rules because this is a bit silly, really, isn't it? The extra seat will almost certainly be National’s because Port Waikato is a safe National seat held by MP Andrew Bayly. Andrew Bayly is high enough on the list, he’s 71, to get in as a List MP on election night. Christensen was ranked 35 on ACT’s list, meaning he was unlikely to become an MP without winning the seat of Port Waikato.

The Electoral Commission confirmed that if Bailey subsequently won the by-election, his list spot will go to the next National candidate on the list and that would give National one more seat than it would have won in the election. If that makes any kind of sense to you?

I mean, it's been explained clearly by a law professor. But dumb rules are still dumb rules and sound dumb, even when you say them, even when you are a distinguished law professor and saying them, they still sound dumb.

There's also another spanner in the works, depending on what happens with Te Pati Maori. If Te Pati Maori get more electorate MP's than its party vote qualifies it for, it could result in 122 or a 223 MPs in Parliament. And that would mean 62 seats were needed to get a majority.

In the Herald’s Poll of Poll’s (they look at all the different polls and sort of divvy them up and average them out) Te Pati Maori is on just 2.8% in terms of party vote but would get 4 MPs because of the electorate seats.

So even after Saturday there will still be some shuffling of the cards. There will be some shuffling of the pack before we see what the actual make-up of our Parliament looks like.

It's a fascinating thing. I mean, why can't we change the rules? If you say, yep, we've looked at this and I'm an eminent law professor, and I think it's dumb. And another one says, well, I'm an eminent social scientist looking at voting and how people vote in the country. I understand all about MMP and yep, this is really dumb. Why don't we change it? Seems really silly.

Why is there a reluctance to tidy things up? So even after Saturday, there'll be questions that still need answering.

See omnystudio.com/listener for privacy information.