National's MMP claim challenged, but election watchdogs decline to intervene

In brief

• National’s campaign brochure says only the party vote decides the government, overlooking electorate-seat thresholds and overhangs that can affect parliamentary numbers.

• With overhangs potentially pivotal in the 2026 election, the details matter more than usual.

• The ASA will not consider the directly distributed brochure. The Electoral Commission says it lacks a mandate to rule on its accuracy, leaving no obvious avenue for a timely correction while voting is underway.

With voting already underway, questions about National's explanation of MMP have exposed an apparent gap in election oversight. Neither the Advertising Standards Authority nor the Electoral Commission is willing to rule on the accuracy of the party's claims before voters go to the polls.

A National Party brochure distributed ahead of the 7 November election declares: "YOUR PARTY VOTE IS THE KEY VOTE."

Beneath the headline, it states:

"Under MMP, only your party vote decides the government. Your electorate vote does not."

On the reverse, National repeats the message: "Only the party vote decides who has the numbers to form the government. Your electorate vote determines your local MP."

The brochure urges voters to give National the party vote, calling it the only safe strategic option for those who want a National-led government.

But while the party vote normally determines how many seats each party receives, National's categorical description overlooks important features of MMP that can affect which parties have the numbers to govern.

Why the electorate vote matters

According to the Electoral Commission, the party vote "largely decides" the number of seats each party receives.

That is generally true. But it is not the whole rule.

Under MMP, a party winning an electorate seat can qualify for proportional representation even if it fails to reach the 5% party-vote threshold.

Electorate victories can also produce overhang seats when a party wins more electorates than its party-vote entitlement, increasing the size of Parliament and potentially altering the numbers required to form a government.

In 2023, Te Pāti Māori's electorate victories produced two overhang seats. Parliament subsequently reached 123 MPs, with a further seat arising from the Port Waikato by-election.

The Commission's own MMP seat allocation calculator requires users to enter both party votes and electorate seats to calculate parliamentary representation accurately.

Why this election could be different

The irony is that electorate votes could prove decisive for National precisely when voters give their party vote to someone else.

If voters back National candidates locally but give their party votes to ACT or NZ First, National could win more electorate seats than its party-vote share entitles it to. Under MMP, it keeps those extra seats, creating an overhang that could change the numbers needed to form a government.

And this is no remote possibility.

The 27 October 1News Verian poll gave National just 34 seats based on its party vote. By comparison, National held 44 electorate seats following the 2023 election and subsequent Port Waikato by-election. If it wins more than 34 electorates this time, those additional seats could create an overhang.

The same poll projected 61 seats for National, ACT and NZ First combined, enough to govern in a 121-seat Parliament.

But if Māori electorate results produced a 125-seat Parliament, the majority threshold would rise to 63, leaving the coalition two seats short. Those calculations do not account for any additional overhang National itself might create, which could change the parliamentary numbers again. 

The New Zealand Initiative has modelled how strategic vote-splitting could alter the parliamentary numbers, potentially producing outcomes at odds with the overall party-vote balance. Centrist has also published an explainer on the implications.

These scenarios expose the weakness in National's categorical claim. Electorate votes can help determine who governs, not merely who represents a local electorate. 

So how does one challenge National's claim that electorate votes do not decide the government?

Complaint rejected by advertising watchdog

Centrist initially challenged the brochure's accuracy with the Advertising Standards Authority (ASA) on 8 October.

The ASA declined to consider the complaint because its jurisdiction over political advocacy advertising is limited to material distributed through paid media channels. Brochures distributed directly by political parties fall outside its remit.

Under the ASA's advertising rules, factual claims in paid advocacy advertising must be capable of substantiation and distinguished from political opinion.

But the same claim distributed directly through a political pamphlet is not subject to that complaints process.

Asked which regulator could examine the material instead, ASA Complaints and Education Manager Catherine Maclean replied:

"We are not aware of another regulator that specifically deals with complaints about the content of unpaid election advertising."

She suggested approaching National directly.

Centrist then wrote to the Electoral Commission on 19 October, asking five questions, including whether National's statements accurately described MMP and whether the Commission would request a correction.

The Commission did not answer whether the statements were factually correct.

"We have a role in correcting information about enrolling and voting – not debate about strategic voting and how a party is encouraging people to exercise their vote," it said.

Electoral Commission says it lacks the mandate

Following further questions, the Commission maintained that it had no statutory mandate to adjudicate the accuracy of political advertising.

"The Commission does not see its education function as extending to providing views on the accuracy or factual correctness of statements about MMP in election advertising," it said.

"In our view, something more explicit in legislation would be required for the Commission to take that kind of role upon itself."

The Commission said that, as the election referee, it must operate within the powers Parliament has given it rather than create its own jurisdiction.

The Commission also argued that requirements identifying who authorised election advertising allow journalists, commentators and other stakeholders to assess political claims without the Commission itself becoming an arbiter of their accuracy.

It pointed to South Australia and the Australian Capital Territory, where specific legislation allows electoral authorities to examine misleading political advertising. New Zealand has no equivalent Electoral Commission function.

However, the Commission's own 2026 election media kit says it will publish correct information if it identifies inaccurate information circulating about the election process. It also invites journalists to contact the Commission to fact-check information about that process.

However, the same publication makes clear that the Commission does not regulate campaign advertising content.

The unresolved question is where education about the electoral system ends and political advocacy begins when a party makes a categorical statement about how votes translate into parliamentary power.

The Commission suggested that Centrist could challenge its position through the Ombudsman. However, that process would concern the Commission's interpretation of its responsibilities, rather than directly determining whether National's brochure is accurate.

With advance voting having begun on 26 October, this offers no obvious prospect of resolving the dispute before election day.

Who checks the facts?

Ensuring the Commission remains neutral is important. Giving an unelected authority power to regulate political claims would itself raise serious questions about freedom of expression and democratic accountability.

But there is a difference between advocating a voting strategy and making a factual claim about how the electoral system operates.

National is entitled to argue that giving it the party vote is the best way to secure a National-led government. Whether it can accurately claim that electorate votes play no role in deciding who governs is a different question.

With voters already casting their ballots, the apparent gap is not merely whether misleading political claims can be challenged, but whether they can be assessed and corrected while the answer still matters.

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