Rejected, yet elected?

The electoral system for the Scottish Parliament means that candidates rejected by voters in the constituency section may still find themselves in Holyrood, courtesy of the regional lists. Malcolm Harvey suggests that those very parliamentarians may be called on to address this quirk in the system in the next session. 
Much and more will be written in the coming weeks about polls, predictions and projections for May’s Scottish Parliament Election.  Given the veracity of polls in the run up to last year’s UK General Election, perhaps we should be a little more careful with those projections – though they were a bit more in line with the results in Scotland than in the rest of the UK.
Nevertheless, let’s take (at the time of writing) the most recent poll (TNS, face-to-face, fieldwork 2-22 March, released 6 April) as our starting point.  This gives the following figures (with the caveat – there is no data for UKIP):
TNS Results March 2016
If you put those figures into a nifty new Scottish Parliament forecast tool produced by Cutbot, it suggests that we’re headed for a second SNP majority government, with Labour comfortably holding off the Conservatives in second while the Greens overtake the Lib Dems for fourth.
Cutbot Projection SP 2016
So far, so (broadly) uncontroversial.  You can use any of the recent polling figures and you’ll get roughly the same outcome, give or take a couple of seats here or there.
What is very useful about Cutbot’s tool though, is that it forecasts both the constituency numbers (with a note on the methodology for doing so here) and the regional numbers – providing forecasts on who would and would not be elected as constituency or regional MSPs.  And this is where we find an interesting quirk in the Additional Member System we use to elect MSPs in Scotland.
In what was a narrow win for the SNP’s Marco Biagi in 2011, Edinburgh Central – based on the TNS figures, and indeed, several other polls – looks like a relatively comfortable SNP hold, with Alison Dickie elected as MSP for the constituency.  Also standing in the constituency are 2011-16 list MSPs Sarah Boyack (Labour, Lothian), Ruth Davidson (Conservative, Glasgow) and Alison Johnstone (Green, Lothian).  According to the TNS poll, each would be returned to Holyrood as list MSPs for Lothian.  This would mean that, of the five candidates standing in Edinburgh Central, four would be elected, with only Liberal Democrat Hannah Bettsworth missing out.
In almost all of the other constituencies, there are only four candidates, representing the SNP, Labour, the Conservatives and the Liberal Democrats.  In five of those constituencies, three of the four candidates would be elected as MSPs, again based on the TNS figures:
MSPs who could be elected despite losing constituency 2016
In previous Scottish Parliament elections, we have regularly seen a sitting list MSP challenge a constituency MSP in a seat, and after the election both return to Holyrood.  This was, notably, the case in Galloway and Upper Nithsdale when the SNP’s Alasdair Morgan won the seat in 1999, his Conservative challenger Alex Fergusson was returned on the South of Scotland list.  Fergusson won the seat by 99 votes in 2003, but Morgan was returned as a list MSP, and that outcome was repeated in 2007.  As a result of Labour’s internal decision not to allow candidates to stand in both constituencies and on regional lists, in seats where their candidates won, oftentimes the SNP candidate placing second was returned on the list.  Labour altered these arrangements after 2011’s election saw many of their most prominent figures lose constituencies and now allow dual-candidacies. 
And that leads us to the situation we find ourselves in for 2016: that candidates – in one case, three – whom the voters in each of these constituencies have rejected, are elected irrespective of their performance in the first-past-the-post element of the election by virtue of placing high within their party lists.
While this issue has been limited in its salience in Scotland, the issue has come to the fore in elections to the Welsh Assembly.  In the Clwyd West constituency in 2003, four of the five candidates were elected.  This prompted the UK Labour Government to ban dual-candidacy for the 2007 and 2011 Assembly elections – albeit against significant opposition, and the ban was rescinded for the forthcoming election.  As a result, some of our colleagues in Wales – most notably Professor Roger Scully – have written on the matter.  His evidence to several consultations on the issue opposed the ban on dual-candidacies, arguing that the electoral system is: 

“explicitly designed to compensate parties that do not win constituency seats.  The list seats that they are allocated are not ‘creeping in by the back door’; they are an integral part of an electoral system that seeks to combine constituency representation with at least some proportionality.  If parties that are defeated at the constituency level can still win representation, then why should that not apply to individuals?”

He makes the case that if you use AMS, then this is one of the peculiarities of the system, and that only by altering the electoral system can you get away from this situation.   This could be done in many ways, though there are probably two most-likely scenarios.  First, a minor amendment to the AMS system to utilise open-lists, where voters rather than parties determine the order a party’s candidates are elected.  A second, more radical, option might be to bring the Holyrood voting system in line with the local government system, and to adopt the Single Transferable Vote.  This would remove the basic issue of two types of representatives and the dual-candidacy issue that proved most problematic in Wales (and would, theoretically be more proportional than the current system).
While the electoral system for Holyrood was described as ‘broken’ when the SNP’s Mark McDonald was elected as a North East Scotland list MSP in 2011 despite the SNP winning every constituency in the region, the issue of multiple ‘losing’ candidates in constituencies being returned as MSPs has not yet occurred.  However, with the strong likelihood that the 2016 election will deliver results like this, and the fact that the power to alter the electoral arrangements now lies with the Scottish Parliament, the issue may end up on the agenda in the next parliamentary session.

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