Why the B.C. election and STV vote could be overturned by the courts

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      I'll preface this post by saying I am not a lawyer. And I invite any constitutional experts to weigh in with their views in the comment space below.

      But I am someone who pays attention to legal issues and who has a working knowledge of the Canadian Charter of Rights and Freedoms.

      I believe that there are grounds for voters in several constituencies to challenge the results of the May 12 election on the basis that their votes are worth less than people living in other constituencies.

      Section 3 of the charter recognizes that every citizen has a right to vote. Section 15 states that every individual is equal and has the right to equal protection and benefit of the law without discrimination based on such things as race, religion, ethnic origin, and physical or mental disability.

      However under B.C.'s electoral-district system, some citizens' votes are far more powerful than others. That's because there are massive population differentials between different constituencies.

      In Richmond--which has a large Chinese Canadian population--there is one MLA for more than 60,000 residents. In New Westminster, which has a large multicultural population, there is one MLA for 63,929 residents.

      If you skip across the Vancouver, Burnaby, and Surrey constituencies, the ratios aren't much different.

      But step outside of Metro Vancouver, and there are ratios of one MLA for every 21,317  residents in Stikine, one MLA for every 23,348  residents in North Coast, and one MLA for every 27,354 residents in Peace River South.

      The  residents in these rural constituencies have a far more powerful vote. That's not fair.

      An electoral boundaries commission tried to create more fairness in 2007, but the members of the legislature overruled its recommendations.

      It's tough for an MLA to service a sprawling rural constituency, but that doesn't mean residents should have votes that pack two or three times the punch of a voter in Richmond, Vancouver, Burnaby or Surrey.

      I think if this election is really close, someone could challenge the results on the basis that the electoral-district configuration is unconstitutional.

      They could make the argument that it discriminates against people on the basis of their race or national origin. We only have one cabinet minister of Chinese descent, Ida Chong. There is only one cabinet minister of South Asian descent, Wally Oppal.

      Why is the cabinet so heavily tilted toward Caucasians? It's because there is a disproportionate number of seats in districts with larger Caucasian populations.

      I'm guessing that this alone  could cause a judge to strike down the boundaries on the basis that they discriminate against people on the basis of their race and national origin.

      Now, let's move to the  referendum for a single transferable ballot. Under this system, residents in metropolitan Victoria would get seven MLAs. Those who live in the Peace River district would get two MLAs.

      Is it fair that one person gets seven people to represent him or her and another only gets two? STV advocates say there is representation by population because the number of seats is allocated on the basis of a district's population.

      That could stand up in court. Or perhaps it could be struck down under section three of the charter.

      But why didn't Premier Gordon Campbell test-drive it first by submitting it to the court on a reference before we launched this multimillion-dollar referendum vote? Why didn't the attorney general make this recommendation?

      We have an attorney general, Wally Oppal,  who is supposed to be looking after these types of issues.

      So far, I've seen no evidence that  Jolly Wally  has demonstrated any interest whatsoever  in determining if B.C.'s current electoral-district system is racist or if the courts would strike down an electoral system rooted in the STV.

      In   a previous post, I wrote that despite Oppal's celebrity status, he has been a mediocre cabinet minister.

      For evidence, I point to his approach to electoral reform. I also point to his decision not to question the  legislature overturning the recommendations of an independent electoral-boundaries commission, which was chaired by B.C. Supreme Court Justice Bruce Cohen.

      What does Oppal know that Cohen doesn't about the constitutionality of an electoral-boundaries system?

      Comments

      12 Comments

      Gí¶lí¶k

      May 5, 2009 at 8:31pm

      Trouble is, well, we have no clear constitutional enumeration like the United States: Add All free persons, incl. bound by service, excluding indians not taxed, 3/5s of all other. It would apply to everyone and all be it have some hiccups on samelity it would be fair and equal.

      We can learn from what the US doesn't enforce that is good, we don't need to blinded by jingoistic hatred, after all the US Constitution is born of the Enlightenment.

      As for electoral reform with an open nomination process we'd have a choice anywhere. No auditor, fee, or signatures for individuals; only for party brand being added. Best reform is putting Candidates in a caucus to transfer their votes if a Candidate is under 50% and using votes trusted to them to pick their second choice when the fact of an election and not a poll show they did not win. Also end secret ballots to prove the votes were counted right and not just reported as the state wanted them.

      Best,

      Gí¶lí¶k Zoltán Leenderdt Franco-Assisi Buday
      "Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism." — On Liberty, The Library of Liberal Arts edition, p.7.

      Evil Eye

      May 5, 2009 at 9:17pm

      Jolly Wally or Wally Awful, is less than mediocre, he is a failure as an MLA , the Fraserview Liberal Association wanted rid of him because he will lose and Campbell needed a celebrity to run in Delta South, because the Liberals are held in high odor by the locals.

      Wally, some said, had lived in Delta for some years, technically he doesn't, he lives on Tsawwassen First nations land which is not Delta at all. Funny thing about Wally Awful, is that the premier ordered TransLink (Gordo is indeed the head of TransLink) to operate an hourly bus service from the Delta Community Centre to the Tsawwassen First Nations, via Tsatsu Shores where Awful lives (the bus actually terminates on Falcon Way). This bus, the 609, carries maybe 5 or 6 people a day!

      Also the Premier has offered the Whitecaps soccer folks and Delta $17 million to enhance Johns Oliver Park for soccer; but this is just after the Liberal dominated Delta Council, reneged on their agreement and tossed the BritLion Rugby Club from the fields after they invested $1 million! Mind you if Wally Awful isn't elected, poof goes the cash.

      So far the Prem. is trying to bribe Delta South over $18 million to get Awful elected.

      With the BC Rail scandal becoming more of a quagmire of scandal daily, the Prem. must be happy that Wally is working for him and not the people of BC. That $18 million maybe money well spent! On the other hand, the voters in Delta South smell a rat and may just elect a MLA who actually can speak and think for herself!

      Michael_R

      May 5, 2009 at 9:38pm

      Can you find any electoral system that is completely fair? In the end, we have to choose a system that balances its imperfections. If everyone's vote were equal, then politicians would gear their promises and platforms to the regions with the most dense populations. If there are 3 million voters in Metro Vancouver, and, say, 50,000 some place up north, politicians would find it far more beneficial to pander to the 3 million. Basically, Vancouver, Victoria, the Fraser Valley and parts of the Okanagan would be picking our governments. Residents up north would have virtually no influence on their own affairs, because their votes -- while being equal -- will be considered chump change to those in power. Consider that giving the northerners more powerful votes does add some balance to the equation. Not saying it's perfect, but pointing out that there is no perfect system.

      seth

      May 5, 2009 at 11:01pm

      Time to take BC back, a long ways back, to the original Greek democracy enhanced by modern technology.

      There seems to be no way to get the voter to pay any attention or inform himself. Indeed with the complexities in decision making we face no voter could possibly do more than guess who might make the best candidate. I would propose a Utopian system similar to the original Greek democracy where:

      Suitably qualified legislators (high school diploma, mentally fit) would be selected at random from the voters list, given a 6 month training course/apprenticeship and required to serve four years as a legislator. It would be considered National service, a great honour and almost no outs. Legislators would be given a much better salary/pension then they would otherwise be getting and would be guaranteed a job when their term is up. There would be lots of them say 8 for each constituency. Leaders would be chosen from within parliament.

      Telecommuting, teleconferencing, and regional meetings/groups would greatly reduce the legislator's need to be stuck in the capital.

      The current impossible municipal voting system where the voter has to select amongst hundreds of candidates for 20 or so representatives would be the first to switch over.

      It would likely be not much more expensive than the current mess and a lot more effective.
      seth

      Ron Dwyer

      May 6, 2009 at 6:45am

      If a challenge based on the CCRF was viable, why doesn't it happen with every Federal election? The riding of Labrador only has something like 20K electors.. Compare that to the riding of Oak Ridges, with 137K electors.

      (IMO, the # of representatives per riding should be based on population. In the example above, Oak Ridges should have 6 MPs. )

      John Hague

      May 6, 2009 at 12:06pm

      BC-STV for Healthy, Prosperous and Sustainable Communities

      There can be no doubt that the approach to electoral reform as
      laid down by the current government of BC has been rigorous,
      equitable, intelligent and thorough. The mixed member
      proportional option was carefully considered by the Citizens
      Assembly, and contrary to the opinions of several hundreds of
      people writing in and the constant advocacy of the Green Party of
      BC, the MMP option was voted upon and dropped from consideration.

      Personally, I very strongly supported MMP and, along with my
      fellow Greens in BC went through a difficult transition to
      accept BC-STV as the best remaining alternative to first
      past the post. Simply stated, the citizens of the
      assembly voted for less political party power in exchange for a more
      detailed counting system. Everything involves a trade-off,
      and In this case, a net benefit.

      "Fragmentation", "Perpetual Minorities", "Complex", "Less Access",
      - these descriptors are not based in fact. What is true and based upon fact, is that BC-STV will provide a multi-dimensional perspective in the BC Legislature. It will no longer be
      the capitalists against the social democrats against the environmentalists against the capitalists, ad nauseum. On every single ballot the citizen will be able to engage the rich diversity of political thought, and to create, by voting his/her preferences, a unique outcome. The citizen can choose the party, the candidate and mix and match these combinations to provide the most powerful vote conceivable. The message this sends to
      candidates and their affiliated parties is -

      "You Are Here To Serve!
      Fail to serve the entire population of the Electoral District,
      and "out you go", regardless that you may have been following
      the "party line".

      Like all technologies, ideologies and philosophies the time of
      "first past the post" has reached the end of its cycle.
      Uni-dimensional politics is simply no longer able to address the
      myriad of multi-dimensional issues that we face in our economic,
      social and environmental lives. We now need the best of
      all our ideas and we need those ideas to compete and to
      complement in the creation of:

      Healthy, Prosperous and Sustainable Communities.

      This is one crucial step on the path ahead.

      > > And for even more fun, try out your STV vote here:
      > > http://www.trystv.ca/

      John Hague,

      "Creative Conflict Services, BC" ::
      "NATURE, PEOPLE, BUSINESS, In Harmony"
      1379 Sea Lovers Lane, Gabriola Island, BC,
      V0R 1X5, 250-247-7675

      Jim

      May 6, 2009 at 1:12pm

      How about this — if BC-STV loses, because it doesn't make the required supermajority of 60%, — those who voted YES, start a court challenge based on the fact that their YES votes are worth less than the NO votes.

      With the 60% requirement to pass, 41 votes are more powerful than 59 votes. In the last referendum 42% voting NO beat 58% voting YES. Sounds like a reasonable challenge to me.

      Based on Charlie Smith's non-lawyerly argument, the Supreme Court would have already implemented STV in BC based on the unfair results of the last referendum.

      Charlie Smith is doing nothing more than fear-mongering. There aren't going to be any court challenges based on his made-up argument. If this was valid then we would have already had many such arguments both federally and provincially. Don't buy it.

      Dan

      May 6, 2009 at 10:19pm

      Charlie,

      Jim is right, the only aspect of the election really open to a section 3 challenge is the 60% quota put on the referendum. Particularly since this is no longer accepting a report, but a clear choice between electoral systems.

      All section 3 guarantees is each voter has the right to vote.

      The Supreme court has defined it further as each voter has a right to play a meaningful role in our electoral system and the right to effective representation. First past the post would fail on this account far more readily than STV. Each voter under STV has a much more meaningful role.

      Charlie, you could look at support for the STV side from Andrew Petter, Dean of Law from Uvic, as well as Stephen Owen, former head of the Law Commission of Canada, Brian Wallace, former head of the BC Bar Association, Patrick Boyer, Constitutional Law Professor at U of T, Patrick Smith, Director of Governance Studies at SFU. The BC Civil Liberties Association has also endorsed BC-STV. You can also look at the extensive list of political scientists who specialize in constitutional issues. (STV.ca/endorsements)

      Do you think any of these distinguished scholars would lend their name to a cause that was unconstitutional.

      Single transferable vote is at the opposite end of the spectrum from at-large/block voting. Each voter, whether they live in Vancouver or Peace River has a similar ability to elect an MLA and each MLA represents a wider scope. STV is also used in Ireland, Scotland, Australia and other countries with whom we share a similar common law system of governance. No constitutional challenges there.

      Charlie, I really hope you would consider consulting with experts before making a statement such as this. You may be right on the redistricting, but certainly not on STV.

      Charlie Smith

      May 7, 2009 at 8:51am

      I asked Stephen Owen about this issue once. He provided a thoughtful answer. I have merely suggested that the premier and his attorney general should have put this forward as a reference case before we spent bazillions of dollars. For that, the STV zealots go berserk. I'm kind of getting used to this. Most of my criticism in the piece was directed at the other side of the equation.

      jim

      May 7, 2009 at 12:01pm

      Charlie do you think we are all fools?

      Your "mere suggestion" becomes a front page headline on the Georgia Straight site that says "Why the B.C. election and STV vote could be overturned by the courts". This is not neutral or balanced commentary. You are an STV opponent, yet you come on here with your "I was just sayin' ... but all you zealots go berserk". Please. Your use of name-calling shows you aren't exactly a neutral voice yourself, Mr. Journalist.

      The idea that they would put this forward as a reference case is as silly as the idea that anyone will be challenging the referendum in the Supreme Court were STV to pass. Please stop being disingenuous. You are seeding the media with niggling fears and doubts that have no basis in fact, just like the official STV opponents. This NO-STV people use this tack because it directs attention away from the woefully inadequate winner-take-all system that they are attempting to get a 40% minority to cast a vote for.