Naturally we all fret to understand if the polling oracles know which party will win the absolute majority of the votes which should translate in the absolute majority of the seats.
Yet not many know that under the present constitutional system a party may win a majority in the House of Representatives without winning the 50 per cent of all the votes. Yes, strange but true!
The Constitution permits a party to win more than 50 per cent of the seats with much less than the 50 per cent of the votes on condition that it wins one vote more than the second-placed party.
For example, if we take the Times of Malta’s Poll of Polls published on Monday, Labour is accredited a minimum of 37.6 per cent of the voting intentions. The poll also gives 35.9 per cent to PN/PD. Now, should this be the final result of the general election, the law would give the Labour Party a comfortable overall parliamentary majority with just 37.6 per cent of the entire national vote.
And all this despite that the remainder of voters (26.5 per cent) were a protest non-vote. Put into the present context clearly the Muscat government would take off its hat to the protestors and cry out “who needs enemies with friends like these!”
Of course, although the figures quoted by way of example are bound to increase for both parties on election day, yet the scenario of a relative majority victory by either of the two major parties is far from improbable.
The only time we had a relative majority result was at the 2008 election when the PN won a parliamentary majority (35 seats to 34 seats) after winning 49.34 per cent of the first count votes against Labour’s 48.34 per cent.
To my mind, the Poll of Polls indicates a high probability that no party may win the absolute majority of the votes. The higher than usual percentage of voting intentions of “don’t knows” or “not voting” coupled by the conclusion reached that “the PN-PD did not register a single range of support that was common to all three surveys” should make voters think.
The single, small party votes become relevant only if they are enough to elect an MP to Parliament
The voting intentions on the Labour Party seem to reflect that their party faithful are comfortable to declare their intentions openly. The “highest margin” reported by the Poll of Polls for Labour is 42.1 per cent. This figure represents the lowest level any party actually won at an election, namely 43 per cent by the PN faithful at the 2013 clear defeat. These do not seem like floaters.
So the fundamental question remains do the 20 per cent of “undecided-don’t know” voting intentions really represent undecided voters or are they merely opposition voters keeping their cards close to their chest?
If the 20 per cent or so are largely closet PN/PD voters waiting for the election to spring an unwelcome surprise on Muscat’s government, then the PN will effectively be hovering towards an electoral victory albeit in a vote-to-vote close election similar to that of 2008.
Labour may therefore want to wish that these are closet protest voters against them who may really consider not voting. The reason for this lies in our electoral system. Voters who do not vote by way of protest would in reality give an advantage to the party they are protesting against.
This is why if 20 per cent really do not vote, the party with 37.6 per cent of the votes will still win against the second party with 35.9 per cent.
Could these 20 per cent of ‘undecided-don’t know’ voting intentions represent a protest against both of the major parties? Constitutionally, the only rational manner to express such a double protest vote would be to give the first preference vote to a candidate of one of the small parties such as Alternattiva, Patrijotti etc. contesting as single parties on their own.
The effect of so doing however would be similar to abstaining from voting. The law is clear that the third-party votes are not considered in the two-horse race to winning a majority of the first count votes. So, in a scenario in which the PL and the PN are in a photo-finish race with both hovering around the 49-48 per cent, the votes of third-party candidates are not taken into consideration.
At the 2008 election, Alternattiva won 1.31 per cent of the national first-count votes which considering that the final difference between the PN and MLP was less than one percentage point (0.55 per cent), could potentially have tilted the result one way or the other had the Constitution allowed it. But it did not.
The single, small party votes become relevant only if they are enough to elect an MP to Parliament. However this may easily lead to instability. The election of third- party candidate switches off the so-called majority guarantees which ensure that the majority party in votes wins the majority of seats thereby preventing the repeat of the 1981 election when Labour governed for five years without the majority of the votes.
All this also explains why the Partit Demokratiku chose to contest in one list with the PN. It is to date, the only constitutional way in which a protest vote may successfully add a third voice in Parliament to act as a moderating force within a ruling PN/PD majority.
Could this turn out to be the double institutional change in government and in Parliament which protest voters may truly believe in?
Austin Bencini is a constitutional lawyer.