Extraordinary vacancies when nominations close – what happens?

We know Councils will have questions about what happens if there aren’t enough candidates to fill their vacant seats, so we’ve written a Q&A so you know what to expect if you find your council in this situation. Your Council’s Electoral Officer will be able to answer any questions you have too.

What happens if when nominations close, the number of candidates does not exceed the number of vacancies? 

If the number of candidates does not exceed the number of vacancies, the electoral officer must as soon as practicable declare all nominated candidates to be elected.  

This means that after midday on Friday 12 August, if there are councils where there are not enough nominations to fill the number of vacant seats, those candidates that have put themselves forward will be declared as being elected (i.e., automatically elected).  

What happens if there are unfilled vacancies (i.e., not enough candidates or no candidates to fill all the vacancies available)?  

If this is the case, the remaining unfilled vacancies are deemed to be extraordinary vacancies, and those extraordinary vacancies are to be treated as occurring on polling day.  

What are some other situations in which an extraordinary vacancy could arise? 

• A candidate is elected as both mayor and a member of the same territorial authority, and there’s no other candidate to fill the consequential vacancy that’s created for a member of the territorial authority.  
• A candidate is elected as both a member of a territorial authority and one of its community/local boards, and there’s no other candidate to fill the consequential vacancy that’s created for a member of the relevant community/local board.  
• A sitting community/local board member is elected as a member of the territorial authority at a by-election of the territorial authority (thereby creating a vacancy on the community/local board).  

Note that whether any of these extraordinary vacancies arise won’t be known until polling day/in the event a by-election is subsequently held to fill an extraordinary vacancy.  

How is an extraordinary vacancy filled?  

If an extraordinary vacancy needs to be filled, the process is as follows:

• The Chief Executive of the local authority must give notice of the vacancy to the electoral officer. 
• A by-election must be held not later than 89 days after the electoral officer receives the notice.  
• The by-election must be conducted in accordance with the Local Electoral Act and Local Electoral Regulations.  
• An election must be held at the same time to fill every extraordinary vacancy that’s unfilled at the time the extraordinary vacancy occurred (i.e., a by-election for all extraordinary vacancies that exist when nominations close all need to be held at the same time).  

What happens if an extraordinary vacancy can’t be filled through a by-election?  

• If an extraordinary vacancy occurs on a council and is unable to be filled by a by-election, the Chief Executive must notify the Electoral Officer of the vacancy and another by-election needs to be held not later than 89 days after the electoral officer receives the notice.  
  • A council can only appoint a person to fill an extraordinary vacancy if that extraordinary vacancy occurs 12 months or less, prior to the next triennial election. 
• If an extraordinary vacancy occurs on a community/local board and is unable to be filled in a by-election (e.g., no nominations received) the community/local board may determine by resolution that the vacancy is to be filled by an appointment by the community/local board of a person named in the resolution, who is qualified to be elected as a member of the board. This resolution must be publicly notified.  
  
  • It’s up to the community/local board to decide – by majority – as to how the person to be appointed to the community/local board will be selected. There is no prescription as to how that person must be selected.  
  • The person to be appointed needs to satisfy the qualification criteria (e.g., NZ citizen, not a candidate for more than 1 ward in the same territorial authority, etc).  
  • If an appointment to fill an extraordinary vacancy is recommended, the council needs to confirm with the prospective appointee that they’re qualified, interested and available to be appointed to the position, before any resolution is passed.  

What is our advice to elected members? 

• If there’s an extraordinary vacancy, discuss this with your council’s Electoral Officer – they’ll be able to advise you on what will happen next.  
• Your council should communicate any absence of quorum to DIA.   

Where have these rules come from? 

• All these rules are set out in the Local Electoral Act and Local Electoral Regulations. 
• Taituarā has published a Code of Good Practice for the management of local authority elections and polls 2022, which is the key piece of advice for councils on how to conduct elections.  
• For access to this advice document, please get in touch with Taituarā at info@taituara.org.nz