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Federal Politics 2013-

Feb 21, 2016

Double trouble

As parliament prepares to resume, it appears action is finally brewing on Senate reform – auguring a double dissolution election in July, if some media reports are to be believed.

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UPDATE: The legislation has been introduced, and you can read all about it here. Contrary to the impression given below, the savings provision has not turned out to be retaining group voting tickets, but simply allowing one-box only votes to exhaust, along the lines recommended by Antony Green, even though the ballot paper will direct voters to number at least six boxes.

With all the talk lately of Senate reform and a possible double dissolution, I thought this site could use a thread specifically for the discussion of such matters. The Senate reform train finally began gathering momentum the week before last, when it was reported that a deal with the Greens and Nick Xenophon had produced a set of reforms which the government hoped would be through parliament by the end of the autumn session on March 17. The proposal was to abolish group voting tickets and require that voters number at least six boxes either above or below the line, with votes dropping out of the count when there were no numbered parties or candidates for them to pass on to. Antony Green, for one, is alarmed about this proposal, as it would render informal the votes of those who failed to notice the change as simply numbered one box above the line. Perhaps for this reason, Special Minister of State Matthias Cormann has kept open the option of retaining group voting tickets essentially as a savings provision for those who don’t vote in the favoured manner. Antony Green’s preference is for the ballot paper to direct voters to number at least six boxes, but nonetheless to allow voters to number fewer boxes and have their vote drop out at any earlier point of the count than envisioned.

Further raising the stakes, the government has been putting it about that the passage of the legislation will create the opportunity for a double dissolution election on July 2 — late enough to avoid the mid-year cut-off point, before which the Senate term would have been backdated to the middle of the last year, causing the next half-Senate election to fall due in two years’ time. As a double dissolution cannot be called in the six months before the final day of the parliamentary term, the last day such an election can be called is May 11. This raises two problems for the government: the seven-and-a-half week campaign that would ensue to stretch the election timing elastic all the way to July, and the fact that the budget is to be brought down on May 10. The former is a cause for wariness on the part of the government if only because of the precedent of the 1984 election, at which a Prime Minister who had a lot in common with Malcolm Turnbull was run unexpectedly close by an Opposition Leader who was in a similar position to Bill Shorten. The latter would require the spectacle of the government guillotining the budget through both houses of parliament, perhaps in a matter of hours.

It’s possible there are procedural hurdles that have been overlooked in this scenario, either in terms of getting the budget through in such haste, or initiating the election through the Governor-General and state Governors in whatever time might be left available. While there is no indication the government would proceed on any basis other than getting the budget through first, there has been a fair bit of discussion about the potential for the budget to be postponed until after the election, and an interim supply bill passed to cover the gap. The Hawke government was obliged to rush just such a bill through parliament when it called a July double dissolution in 1987, albeit that this was in the age of August rather than May budgets (although the government had brought down a mini-budget in May that had yet to make it through the Senate). It’s also possible that the government would not need to pass a supply bill in any case. The departmental budgets that are funded by the regular supply bills account for only about 20% of total expenditure, which is considerably less than in Gough Whitlam’s time. Departments might well be able to struggle by on their reserves until such a bill was passed — although it’s been noted here in comments that this may not extend to the funding the Australian Electoral Commission would need to conduct the election.

More of my take on such matters, including the obstacles that the Australian Electoral Commission would face in implementing the reported reform proposals, in a paywalled article in Crikey.

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75 comments

75 thoughts on “Double trouble

  1. Tom the first and best

    GTV as a saving provision for limited compulsory preferencing is reasonable.

  2. Tom the first and best

    Polling day may or may not have to be left until the 2nd of July for the Senate terms for each of the states (each state technically has entirely separate Senate terms that have always coincided) to start on the 1st of July 2016 because when section 13 of the Constitution says “the day of his election” as the point from which the 1st of July starting day is set, it may refer to the day that the Senators are declared elected rather than polling day. Holding polling day after* the 1st of July should prevent legal disputes over the term length, which the Senate could determine it self but would probably pass to the High Court.

    *Were a DD Senate election in any or all states to be held on the 1st of July, should that day fall on a Saturday, the terms would then start the 1st of July the previous year.

    If, in any state, exactly 12 nominations are received by polling day, then there is a good chance the Senate terms for that state would begin on the 1st of July 2015 as the day of election would almost certainly be nomination day, which cannot be after the 1st of July because of the maximum number of days between the last possible dissolution and nomination day being to small.

  3. Dan Gulberry

    Voters will be very harsh on Turnbull if he pulls the stunt of a DD election before the budget. In all likelihood they’ll punish him even more after Morrison reveals whatever nasties he’s got planned.

    Damned if he does, and damned if he doesn’t. Either way – damned.

    There’s never been a more exciting time to be someone who wants the LNP turfed out.

  4. ltep

    There won’t be a double dissolution, it’s just too impractical and seems like it’d be all risk with very little prospect of significant reward.

    In terms of voting system reform, I agree that it needs to happen; but I personally feel it’s reaching the stage where it’s just too close to the election. Any significant reform needs to be well thought through, including allowing experts and interested parties to scrutinise and provide feedback through a committee process. We will likely be stuck with whatever system is implemented for some time.

    It’s true that JSCEM has already had a general look (or rather, several looks, including various private senators’ bills over the years) at the issue and provided recommendations – but it should also look at the fine detail of a legislative proposal. Such an inquiry should provide participating membership with cross bench senators who obviously have some interest in reform.

  5. ltep

    Having said that, on reflection, probably giving a committee the April break to look at a bill would be fine; but then you’d be looking at the bill not being passed until the end of the June sittings potentially.

  6. pedant

    Retaining group voting tickets as a form of savings provision for those voting preferentially above the line would be a real constitutional gamble, wide open to challenge. Such an arrangement would also be a horror to count. It would require more and bigger changes to the AEC’s computer systems than just about any of the other recently mooted changes, and would be painfully difficult to implement in a manual scrutiny.

  7. pedant

    Further to my 6, keeping GVTs as a fallback would be highly likely to result in a continuation of preference harvesting. The micros would simply flood the ballots with candidates and groups, and rely on their voters being disengaged enough to just vote 1 above the line. At a DD with a small quota, they’d have an excellent chance of still winning seats.

  8. Antony GREEN

    The savings provision would be a ticket vote for the single chosen party, not a group ticket vote for all candidates. That is the NSW form of ticket voting and the JSCEM recommendation, so the JSCEM recommendation would be the savings provision. It would give effect to the first preference vote of an elector by applying it to the candidates of the first preference party. That would be much less likely to challenge being a savings provision in exactly the form of above the line preferences.

  9. pedant

    Antony Green @ 8: Thanks for that clarification, what you describe wouldn’t be a problem at all, in fact it would be a very good idea. William, you might want to clarify your main entry if you share Antony’s understanding of what Senator Cormann may have in mind.

  10. pedant

    Again on Antony Green @ 8: While it would make sense for a vote for a single ticket above the line to suffice to make a vote formal, as you have described, one would hope that any additional preferences shown above the line would also be countable.

    Say I vote 1 to 5 above the line, then accidentally put a 6 against two different groups. It should be possible to count all of the preferences I have implied with my numbers 1 to 5, not just the preferences for the candidates in the group marked with the 1.

  11. pedant

    In her article in The Conversation cited in the main thread (https://theconversation.com/how-will-turnbull-get-the-money-needed-to-govern-if-he-calls-a-double-dissolution-55108), Michelle Grattan gets an important detail wrong. There is no way the GG would question a request for a DD because of doubts over the status of the ABCC Bill as a trigger. Past precedent has made it clear that (a) only one trigger is needed; (ii) a bill need not have been cited in the proclamation in order to be able to be passed at a joint sitting; and (iii) the High Court can strike a bill down later if it is found that the section 57 conditions precedent hadn’t been met: that’s what happened to the Petroleum and Minerals Authority Act after the 1974 double dissolution.

  12. Scott Bales

    @ Anthony – I’ve got to say I don’t see that as a solution that will lead to good outcomes.

    If you put in a secret ‘backup’ that people can put in less effort, but still get the good feelings from having done their civic duty and voting, then they will take that shortcut. This will lead to a huge number of exhausted votes, and in the end the system won’t be much different to first past the post, which would be a massive set back in my opinion.

    Every single exhausted vote is a person disenfranchised. It doesn’t matter if its due to the system, or their own laziness. That person is no better off than if they had their vote disqualified as informal, or if they weren’t allowed to vote in the first place.

    The best electoral system:
    A) Minimises the sum of Exhausted + informal votes
    B) Aligns people’s preferences with the parties they like.
    C) Continues working even if the voter doesn’t realise the system changed.
    D) Is fair to all parties.

    The best way to accomplish the above, is allow voters to number any amount of boxes. Then, fill in the blanks they leave according to the group voting ticket of the party that they voted number 1.

    This will keep exhausted votes at 0.
    It will have few informal votes. There are a lot of ways to get it right and few ways to get it wrong.
    It meets category C – if people just vote 1 above the line, then the system behaves identically to the current one.

    It is an improvement on the current system for category B.

    I have no idea about category D.

    The influence of preference whispering’ becomes significantly lower – the more preferences people put in, the mroe complicated the calculations, and the less effective preference whispering is.

  13. Antony GREEN

    Pedant@10 – Of course that is the case. The suggestion I made to JSCEM and they indicated a preference for was the ACT ballot paper where the instructions say to fill in five preferences, but any ballot paper with a valid first preference still counts for as many preferences are completed. Less than 3% of ACT ballot papers have fewer than the nominated number of preferences.

    Pedant@11 – Grattan is aware of all of those points as I went through them all in detailed conversations yesterday. She didn’t explicitly write this, but the point being made is that with such a tight timetable for a double dissolution, you don’t do what Malcolm Fraser did in 1983 by arriving suddenly with a proposal for a double dissolution and expect an instant response. I would expect that if the Prime Minister is contemplating a double dissolution, he will visit the Governor General in the week before parliament resumes to keep the crown informed of the government’s thinking on the subject of a double dissolution.

  14. Antony GREEN

    ScottBales @12 – “Every single exhausted vote is a person disenfranchised. … That person is no better off than if they had their vote disqualified as informal, or if they weren’t allowed to vote in the first place.”

    That is utter rubbish. If a vote is disqualified as informal it gets put away to one side and counts for nobody. If a single ‘1’ is a savings provision, then the vote would count for the candidates of that group for as long as those candidates remain live in the count.

    If the ‘1’ is for a candidate with an elected candidate then the vote counts towards the election of that candidate. An informal vote of course wouldn’t do that.

    If the vote is for a candidate/party that is later excluded, it at least counts for them to the point where they can no longer be elected, which an informal vote would not do.

    Ticket voting has never been tested in a constitutional case, only in a single judge injunction hearing. The High Court would probably just tolerate ticket votes as they work now as a voter has chosen an entire ticket, even if they may have no idea of the ticket.

    But I cannot imagine the court would accept a mix ‘n’ match form of ticket voting where a voter has filled in a number of preferences and then someone re-interprets them to match a lodged ticket.

  15. Toorak Toff

    You know, the present system is actually more democratic than any of the ‘reforms’ that vested interests are proposing.

  16. bug1

    With the proposed changes to senate voting, a significant proportion of votes will exhaust.

    What happens if all votes are exhausted before counting begins for the last seat ?

  17. bug1

    oh wait, thats impossible

  18. caf

    I don’t see how it’s “more democratic”. The current system effectively coerces voters in the larger states into handing over their preference order to a party-lodged ticket.

    (Eg. in order to lodge a valid below-the-line vote in NSW in 2013 you had to correctly order 110 candidates – and does anyone really think that *anybody* did the ~6000 pairwise comparisons that are required to totally order 110 candidates anyway?)

  19. Asha Leu

    Reposting from the main thread:

    I won’t bother repeating my views on the Senate reforms, as I’ve rambled on about them in detail on quite a few different occasions, but suffice to say I basically agree with Antony Green and Kevin Bonham, and cannot fathom what the fuss is about.

    Not only will the reforms better represent the views of the electorate, but I posit that both Labor and minor parties (at least, those that actually have some form of support) will ultimately benefit from the new system. I mean, people don’t honestly believe the “Liberals will gain a Senate majority!” nonsense that was so wildly discredited by Antony Green, Kevin Bonham and others, do they?

    As for OPV allowing people to intentionally “disenfranchise” themselves (the horror!), better that then people unintentionally disenfranchising themselves by screwing up their BTL vote or having their ATL preferences ultimately elect a candidate that they find repugnant.

    Its also mildly amusing that at least some of those against the changes have more or less indicated in the last few pages that they don’t really understand either the current system or the reforms. Not that I can blame them, considering that a good portion of our federal pollies clearly don’t either!

  20. Jack A Randa

    Hey Will-I-Am, two things wrong here! First, your header text has been overtaken by time. Second, you have either not linked to this thread from the current Newspoll 50-50 thread at all, or you did it so inconspicuously that nobody noticed, and the main discussion of Senate voting reform is still going on on that thread, mixed in with tax issues and allsorts. I only knew about this thread cos of an incidental ref to it by one of the posters on the 50-50 thread. Most people are still discussing Senate voting on that thread and I guess I’ll continue to do the same unless you put up a VERY VISIBLE direction on it to discuss such matters here, that people are likley to see and obey.

    And how’s the PhD going? You seem to have been a candidate for ummm… a while.

  21. William Bowe

    Neither of those are something wrong, Jack. Things getting overtaken by events is what happens all the time, and there is a link to this post in my Newspoll post.

  22. caf

    It seems that the worst bit of the legislation is that it does not relax the preferencing requirements for below-the-line ballots in the same way that it does for above-the-line. The effect is that a BTL ballot can be informal, whilst expressing exactly the same preferences as an ATL ballot that is formal, which seems perverse.

  23. Raaraa

    @caf

    There is a slight change. I’ve read somewhere that they allow for 5 numbering errors rather than the 3 in the existing provisions.

  24. Asha Leu

    caf @23:

    Yes, I’m a bit disappointed that there isn’t some form of OPV below the line as well, for those who want to preference candidates in ways contrary to the ticket but don’t want to number all 50+ boxes.

    Otherwise, it all looks like an enormous improvement on the current system, and I’m glad that they went with exhausting votes instead of GVT as the savings provision.

  25. Airlines

    Not entirely sure why there was no BTL OPV implementation, but the savings provisions ATL is definitely a good idea

  26. Raaraa

    I believe the justification put out so far on not making any significant changes on BTL is that an overwhelming majority of voters voter ATL anyway.

    Though to be fair, making BTL easier would increase the number of BTL votes.

  27. Antony GREEN

    Interestingly the bill ends reporting of Senate totals on election night. In line with security and accuracy problems raised by Keelty and the AEC, but still surprising.

    http://blogs.abc.net.au/antonygreen/2016/02/senate-electoral-reform-bill-abandons-election-night-senate-counting.html

  28. Pegasus

    http://www.theguardian.com/australia-news/2016/feb/22/malcolm-turnbull-moves-to-overhaul-senate-voting-system-before-election

    [Labor was deeply divided on the reforms, with Labor senators, including the Senate leader, Penny Wong, and deputy leader, Stephen Conroy, saying they would entrench a Coalition advantage in the upper house, but the shadow special minister of state, Gary Gray, strongly arguing they were “the right thing to do” in the interests of democracy.

    It is understood the shadow cabinet decided on Monday night to recommend to the caucus that Labor oppose the moves.

    But the party’s Senate leadership, Penny Wong and Stephen Conroy, have vehemently oppose the changes.]

  29. Kevin Bonham

    My comments:

    http://kevinbonham.blogspot.com.au/2016/02/senate-reform-its-finally-on.html

    It’s not perfect but it’s a massive improvement. The failure to liberalise BTL voting to more than a token degree requires explanation.

    Dastyari is an embarrassment.

  30. bug1

    Voters should have to number every box above the line.

    This is in effect a move toward optional voting, 99% of people will only number 1 to 6, because its in our nature to be lazy.

    Its going to result in more extreme politics and the senate will become a rubber stamp.

    1-6 is more broken than the current system.

  31. ltep

    I’m struggling to see Dastyari’s motive in peddling all this stuff. It seems pointless angling for more House of Representatives preference deals if that’s what he’s after.

    [1-6 is more broken than the current system]

    No, I don’t think so. At the moment, voters have no idea where their vote will end up as it’s impossible to predict the order of exclusion of micro party candidates even if you were aware of the ticket your chosen party had chosen to direct its preferences to. Under the proposed system it will be beyond doubt that people are aware of where their vote will end up, given it can go no further than the last preference they choose to indicate.

    I would suggest the parties consider implementing a ban on advocating a ‘Just vote 1’ card for Senate ballots. Others have set out the arguments for this better than I ever could!

  32. ltep

    It’s sad that they won’t be reporting first preference votes for the Senate on election night; even with the changes you’d still be able to get a rough idea of the eventual makeup I’d imagine.

  33. Raaraa

    bug1@31

    Voters should have to number every box above the line.

    This is in effect a move toward optional voting, 99% of people will only number 1 to 6, because its in our nature to be lazy.

    Its going to result in more extreme politics and the senate will become a rubber stamp.

    1-6 is more broken than the current system.

    I’m not sure how it’ll become more extreme. In any case, it’ll more likely eliminate parties with extreme views earlier on. I thought it’s more likely to entrench votes in mainstream parties more, and smaller parties will have to work harder or merge to remain in the count.

  34. bug1

    It makes it easier for the senate to be controlled by the government, meaning they dont have negotiate with anyone. e.g. Howards last years.

    These accidental senators that the bill is aiming to prevent might be a bit strange at the start, but they are the only ‘normal people’ who get a vote.

  35. bug1

    “At the moment, voters have no idea where their vote will end up”

    If they vote below the line they know exactly where their vote will end up, its their choice.

    There are other measure can be taken to reduce the growth in micro parties that dont result in votes being exhausted, and our democracy weakened.

  36. Raaraa

    My view is that while they’ll get more seats, it’s still very hard to get a majority in the Senate. Remember that Howard got a majority in the Senate through the old (existing) system, and partly through a fluke where the Nationals ran separate tickets in Queensland.

    And if a party actually got more than 50% of the votes in the Senate through two election cycles (combination of two half-senates), then perhaps they really are deserving of getting a majority in the Senate.

    Better that than “accidental senators”.

  37. Kevin Bonham

    bug1@36

    “At the moment, voters have no idea where their vote will end up”

    If they vote below the line they know exactly where their vote will end up, its their choice.

    But it is not a practical one. It is one that places them at risk of their vote being made informal if they make mistakes, and that discriminates against them by giving them no easy way to express their preference compared to someone who just whacks a 1 in the party box.

    This discrimination is a breach of Australia’s human rights commitments to grant people of differing political views equal protection, specifically from an unduly arduous voting process and risk of having their vote invalidated.

    The new system also discriminates – against those who like to vote across party lines (eg a Green who wants to preference a left-wing Labor person but not a Shoppie). We are yet to see if this discrimination is justified.

    It is looking like the failure to improve BTL arrangements was a sop to Labor which Labor didn’t accept. (see update 2 at http://kevinbonham.blogspot.com.au/2016/02/senate-reform-its-finally-on.html)

    I don’t agree that the accidental Senators are “normal people”. Muir is the only normal one among them. Madigan and Day are religious morality fanatics, Lambie is an anti-Islamic extremist and Leyonhjelm is a semi-libertarian idealogue.

  38. ltep

    [These accidental senators that the bill is aiming to prevent might be a bit strange at the start, but they are the only ‘normal people’ who get a vote.]

    Whether it’s a preferable thing to have ‘normal people’ in the Parliament is another argument. The question is whether we want an electoral system that values voter choice. People should not be forced to number a heap of boxes below the line, which increases the chances of their vote becoming informal, just to know for sure that their vote won’t end up electing someone they never intended it to elect.

    And in relation to your point about it making the Senate easier to control by the Government – as you point out the Howard Government controlled the Senate under the existing system. Others with more ability than I have done the analysis to suggest that the new system will probably not mean government control unless the government wins such a portion of the primary vote that it would be an injustice for it not to. The fact that the Senate is elected over the course of 2 elections rather than 1 also increases the difficulty for a party to win a majority, unless they consistently perform so solidly across all states that it would be unfair for them not to.

    Interestingly, even with two very strong performances in NSW in a row the Coalition Government there still did not obtain an outright majority. I know it’s not comparable, but I’d imagine it’s at least slightly suggestive of the fact that it will still be difficult for a single party or coalition to gain control unless it would be ludicrous for it not to.

    I do think that there needs to be close thought into how exactly the system is likely to play out given what is at stake for our democracy.

  39. Matt

    Kevin @38: Indeed, I don’t mind the idea of reform to Senate voting (some of the results have been absolute wowsers), but I’m not at all sure I like this outcome.

  40. blackburnpseph

    Those of us listening to AM this morning had to endure the execrable Bob Day spouting absolute dribble about constitutional challenges. It would help if he actually read the Constitution (Section 9) about the parliament making laws for voting – as long as the same laws apply in every state.

  41. Wakefield

    One of the most significant outcomes of the proposed Senate change will be a significant % of people who will effectively vote 1 LNP 2 Labor or 1 Labor 2 LNP. Often 10-20% of voters do this in HOR voting but its all hidden. These are the “plague on small parties” voters. GVT essentially stops this but proposed system will allow/encourage.

    Equally the proposed system makes it harder for the big players to gang up on a party. The anti Xenophon GVTs in SA in 2013 being the best example. Grif would have romped in under proposed system. Not surprising X is supporting change.

    But the anti Pauline Hanson GVTs also. A significant % of Labor and LNP would have preferenced Hanson given the chance (although maybe some who protest voted Hanson 1 might have been happy with LNP or Labor 1 and Hanson 2.

    But it equally applies if LNP and Labor were to gang up on Greens. Labor voters would never have dutifully followed a Fielding ahead of Greens HTV in Victoria.

  42. Rates Analyst

    Wakefield – you seem to be suggesting that the change makes it more likely that the candidates the voters actually want get elected…. Heaven Forbid!

    My reading is that this doesn’t harm the Majors or the Minors. It benefits both Majors and Minors at the expense of Micros. Which is why the cross-bench is so peeved.

  43. Wakefield

    RA – getting rid of the “No Land Tax”, “Support smokers” etc and other concocted parties having no presence outside Senate, Upper House elections is useful esp if it reduces ballot paper phobia/confusion. But in today’s virtual world it is not too difficult to get something looking like a party so not surprising that the option of trying to make registration harder hasn’t been run too hard.

  44. Matt

    Blackburnseph @41: You poor soul. Marching into the trenches of RW radio, so the rest of us don’t have to XD

    And yes, Day’s off his rocker (as usual) – Parliament can make any damn law it pleases, so long as all States are treated equally. Hell, they could move to Statewide MMP voting for the lower house if they wanted!

  45. daretotread

    Labor really has itself to blame for the mistrust of them in particular as allocators or preferences. I think that probably 70% of ALP voters would have put Xenophon ahead of Day.

  46. daretotread

    I think also there were some pretty bizarre preference deals in NSW, with parties like Sex and Hemp going to Lib Dems and eventially even to Sinodinos. The Greens would probably have won in NSW without the GVT. Sinodidos would probably have lost.

    Lazarus would still have got in due to PUP but not if he was with some unknown party.

  47. Keyman

    I am surprised the issue seems to be about these very destructive micro parties rather than the preference deals that see them elected with OTL voting. Wow, they have wreaked so much damage compared to the major parties – not! I would much rather have people like Lambie, Day, Lazo, Muir etc in the Senate with all the checks and balances that our system provides (eg advisors, Parliamentary Library Resources etc) than more party hacks without real life experiences. Lambie was not motivated to run by anti-Islamic beliefs – it was the plight of ex-military’s poor treatment at the hands of DVA that motivated her, or at least her perception of it. Whether she was right or wrong in that I believe it is still represents a reasonable motivation. Moreover, there are many religious zealots current Parliament who are elected thanks to the major parties, so why is Day any different?
    Regarding BTL – I postal vote so I can take copy the paper to prefill then copy to the original. Takes 30 minutes– yes yes I am strange – but this greatly decreases the likely hood of an informal vote.

  48. DisplayName

    There is certainly some cynicism from Labor on the issue, but some of the concerns are probably genuine (though possibly misguided) ones about “just vote one”.

    Has anyone run (and/or can point to) some numbers/analysis to compare the result of an election – the last election, say – under the current rules with full preferences, to the same election under the new rules with all but first preferences discarded? Would it even be instructive to do so?

  49. DisplayName

    Part of the question is:

    In fptp we may see the votes for a loose grouping of candidates – e.g. right or left – split. Going from compulsory to optional preferences, you would expect this effect to emerge to some lesser extent.

    However, as our preferences in the senate feed into a proportional calculation, does this effect still emerge?

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