Martyn Brown: Voting to be heard—or not (Part 2)

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      In the first part of this two-part look at electoral reform, I supported the goal of improving Canada’s voting system, while also taking exception to the means that the federal Liberals, NDP, and Green Party would use to advance it.

      They believe that our elected representatives in Ottawa should be the ones to choose and determine a new voting system for Canada, not Canadians. I say that’s wrong. The matter should be decided by way of a national referendum.

      In this article, I explore the politics of the issue. I also raise a number of hard questions that beg to be answered before Canadians vote on October 19.

      My concern here is not with any of the potential models for changing our electoral system, per se. Rather, it is about the specific process that each party would follow to put their electoral reform promises in action and the implications of those choices for all Canadians.

      All three opposition leaders should be commended for seeking to enhance our democracy by modernizing our electoral system. Yet they will only frustrate that end by pursuing a path that is patently undemocratic.

      If they are not careful, they may also frustrate their own partisan ends by making their parties an easy political target for Harper’s Conservatives and by putting in place a new electoral system that could easily give Quebec’s separatists new cause for celebration.

      Mulcair, May, and Trudeau have all done the math and concluded that a different voting system may give them more seats in Parliament than they will get under our FPP system, as long as the Right is united and the Left is so deeply fractured.

      They might have a word with Rachel Notley on the long-term political wisdom of that logic. In the meantime, the push is on for electoral reform aimed at some form of proportional representation.

      Never again should our system “unfairly” reward any party with a disproportional share of the popular vote, Mulcair and the others argue. Fine. Even the Bloc Quebecois might agree.

      Last election, the NDP got almost 79 percent of the seats in Quebec with fewer than 43 percent of the popular vote, as compared to the Bloc Québécois, which won only five percent of the seats with 23 percent of the vote. 

      If the people's democratic will was proportionately represented in that province's seat count, the NDP would have won 32 seats instead of the 59 it did. The Bloc would have won 17 seats, instead of the four it actually garnered.

      Funny, we do not hear Mulcair complaining about that "injustice", which his party hopes to repeat to form Canada's next government.

      The Mixed Member Proportional electoral system the NDP advocates may prove to be a major blessing for the separatists in future elections. It could help them to control the balance of power in any minority government, an outcome that would be all but ensured under any model of proportional representation.

      Today, it would hurt the NDP much more than it would help it, as it would only surely stand to benefit the Greens. Only the latter could confidently predict that their share of total seats would increase under a proportional voting system that tends to produce its own unwanted and unexpected anomalies.

      Which begs the question: why are the Liberals and NDP so keen on the politics of electoral reform?

      They know that the issue, per se, it is not a major vote-getter. They also know this: what does get votes, is getting people angry.

      As a political issue, the promise of electoral reform mostly serves to reinforce a broader argument for change. It offers a neat little policy tool to poke away at voters’ anger at the politicians they despise.

      It is easy enough to score political points by vowing to turf the voting system that “illegitimately” rewards our objects of scorn with “unfair” and “unearned” power.

      You want to get rid of the bums? Great. Just throw them out of office by giving some other party the most votes this time around. A simple plurality makes sense if it delivers us from “evil”.

      Liberals, NDP—any “real change” will do. As long as we change the system to make it harder for the ones we hate to ever again form a majority government that was rejected by a majority of voters. Or at least by us.

      Indeed, it has been 31 years since any federal party has won a majority of votes of even the 59-75 percent of registered voters who actually cast a ballot. It is a phenomenon that has only occurred three times in the last 100 years.

      No matter.

      Never again should we involuntarily elect a majority government that was really only endorsed by its misguided minority. Besides, if changing to a new electoral system means we are destined to be ruled by minority governments in more multi-partied parliaments, so be it, say those who pine for proportional representation.

      Look at New Zealand, they suggest, a country with a population that is slightly smaller than British Columbia’s. It hasn’t had a majority government elected since MMP was introduced in 1996. The world hasn’t ended.

      We can quibble about the details later, Mulcair and Trudeau suggest.

      Any model of electoral system must be better than the one that was so sadly foisted on us by the Fathers of Confederation; the one that continues to give us governments that are not really of our choosing, or truly representative.

      The only thing that separates us from the democratic world of our dreams is Stephen Harper’s Conservatives. For the Harper government stands firmly against electoral reform and squarely for the status quo.

      A better electoral world awaits. Our imagined end is all that matters, whatever its shape and form, as long as it suits our individual interests and expectations. The means for getting there is at this stage immaterial, or at minimum, a battle better left to be fought another day.

      Anyway, it is so much easier to simply embrace the need for change and turn happily away until it happens.

      Sometimes it is best to not too closely inspect the “promised lands” of our political leaders’ imaginations. It is enough to have faith that the grass is always greener on the other side of the fence. We can get there together, if we only act like sheep.

      As political strategies go, it might work as intended in the short run, if no one exploits the opposition parties’ Achilles heel on this issue.

      By opposing a referendum on electoral reform, the champions of change have bizarrely made themselves defenders of the status quo. They seek to impose their will on us by voting on our behalf without really listening to what we want, or trusting us enough to make our own decisions on an issue of such sweeping national significance.

      They may not get a lot of extra votes by promising electoral reform; but they stand to lose truckloads of support by defending the indefensible.

      Stephen Harper could not be happier. He has been inadvertently handed a compelling target for political attack that may well help to swing many undecided voters the Conservatives’ way.

      If we want to protect our right to vote, he might argue, we have to stop the “enemies of democracy” from trying to prevent our right to vote on the new electoral system they want their politicians to impose.

      If he was smart, Harper could readily build on that theme to gain the morally superior upper hand.

      First, he could embrace the goal of electoral reform, vow to advance it with a truly independent public consultation process, and promise to let Canadians directly decide the matter at the ballot box.

      And second, he could promise to introduce a new law that would preclude any new electoral system from being adopted without the prior consent of a majority of citizens through a national referendum. He could challenge the other leaders to support that commitment and watch them squirm.

      The fundamental problem for anyone wanting to advance the goal of electoral reform—as I do—is that all of its current advocates who are seeking our votes are prepared to subvert our very right to vote in order to “fix” our voting system.

      The Liberals, New Democrats, and Greens would all have us believe that the act of voting for their candidates is indicative of our support for both the end of electoral reform and for their promised means for achieving it. Not so.

      If elected, they would all claim to have a “mandate” to impose their preferred electoral system, to be ratified by their elected members and not via a national vote. Nonsense.

      Victors always claim to have a “mandate” for everything they promised in their election platforms, however they choose to execute those commitments. Nothing could be further from the truth, of course, and voters tend to get really mad when they feel they have been had.

      As issues go, electoral reform is a double “snoozer”.

      Even the very mention of it tends to make people drowsy. Yet it is one of those “sleeper” political issues that promises to set voters’ hair on fire the moment they wake up to its imminent application and to its implications for Canada.

      A number of hard questions of process are pertinent in that regard. Chief among them are the following:

      1.     What are the constitutional implications of changing our voting system without giving Canadians a vote?

      The question of how our votes are counted and translated into elected representatives and governmental power goes to the very core of our constitutionally protected right to vote.

      In the landmark Carter case, the Supreme Court of Canada found that “the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to ‘effective representation’. Ours is a representative democracy. Each citizen is entitled to be represented in government.” 

      The Court went on to say this:

      “Notwithstanding the fact that the value of a citizen's vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors. First, absolute parity is impossible. Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation.

      Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed.”

      Any new electoral model stands to affect those concerns and our right to effective representation. Especially if it is adopted in a way that is itself innately unrepresentative of our collective wishes.

      We should be asking Trudeau, Mulcair, and May about the constitutional implications of imposing a new voting system without giving Canadians a right to vote on the matter. It should be unthinkable in the post-Meech Lake Accord, post-Charlottetown Accord age.

      If anything, that right to vote on any proposed change to our electoral system should be explicitly enshrined in our nation’s highest law.

      We should also ask this: will you at least promise to first put your plan to the Supreme Court of Canada for a reference decision, to ascertain its constitutional reach, its applicability, if any, and any conditions that must be observed in changing Canada’s voting system?

      2.     What about Quebec? Any special representation or considerations?

      Regardless of whatever electoral system might be put in place after the election, we all deserve to know before we vote how the proponents of change plan to accommodate Quebec. Both in assuring its fair share of representation in Parliament and in ratifying that new model in the first place.

      Would it be OK to impose a new electoral system on Quebec if, for example, a majority of its elected representatives voted against it? Would a certain portion of party seats be set aside under the NDP’s favoured Mixed Member Proportional system to recognize Quebec’s “special status?”

      Inquiring minds want to know.

      3.     What about aboriginal Canadians? Will they get any special representation and is it constitutionally lawful to wish upon them some new electoral system that affects their rights, without a vote?

      How would changing the voting system without affording aboriginals a direct say be construed by the courts in the likely event of a constitutional challenge? How would it not potentially abrogate or derogate from the protection provided for their constitutional rights under section 35 and under section 25 of the Charter of Rights and Freedoms?

      Would there be any special seats set aside for aboriginal Canadians under a new proportional model, as in New Zealand? If so, how many?

      How would any such seats be allocated, given the diversity of aboriginal peoples in Canada, their geographic distribution, on- and off-reserves, and the sheer numbers of First Nations?

      Would it ever be acceptable for the members of Parliament to make that decision about how aboriginals should be better represented? Today those communities have no truly representative voice in that chamber.

      It would be preposterous, if not also unconstitutional, to ask the politicians who do not speak for Canada’s First Nations, Inuit, and Métis peoples to vote on their behalf on a new voting system that is supposed to be all about ensuring more effective representation. 

      4.     How would any new electoral system effect the size of Parliament? How many more additional seats do the opposition leaders envision creating?

      When New Zealand made the switch to its current Mixed Member Proportional electoral system, it increased the size of its parliament by 21 percent. Canada’s land mass is 37 times larger than New Zealand. Our population is almost eight times bigger.

      How many more seats would be added to Parliament to accommodate those allocated proportionally to each parties’ electoral support?

      Or would our existing ridings just be made far larger in a same-sized Parliament, so as to also devote some portion of its 338 seats to each party’s proportional share of the popular vote?

      Would that not invite a constitutional challenge?

      Surely any new electoral system that substantially increases the size of existing electoral districts would diminish the representativeness that is provided under the present system. How would that not impact our constitutionally protected right to vote, as previously interpreted by the Supreme Court?

      Again, both the model and the process for adopting any new voting system are critical.

      In any case, do Canadians really want a larger Parliament, with more politicians? They should know what their leaders intend before voting for “real change” to “make every vote count” on October 19.

      5.     What threshold for parliamentary approval will be required? A supermajority? A double majority?

      In New Zealand, any change to its electoral system can only be legally imposed with either the support of 75 percent of its elected members, or by way of referendum. New Zealanders have already had three votes on their voting system—one to choose and change their preferred model and two to confirm their decision.

      We know that the New Democrats, Liberals, and Greens do not plan on allowing Canadians a vote on their proposed model for a new electoral system. But we do not know what level of support they feel is sufficient for Parliament to pass it.

      Would a supermajority be required for such a fundamental change for our democracy? If so, what threshold might apply? A 60 percent majority? A 75 percent majority?

      Would a double majority also be required to account for any regional considerations? Say, a majority of MPs from each province and territory? Or would a simple majority of all members suffice, regardless of any provinces or territories that might object to the change?

      Answers are demanded.

      6.     Will any proposed new system be put to Parliament as a confidence vote in the event of a minority government?

      Chances are we will have a minority government. Will all of the contenders to replace Harper’s Conservatives now commit that their preferred voting system would be considered a vote of confidence?

      If their new voting system fails to garner the level of support specified to pass, what would result? An instant election? A referendum after all? Would they go back to the drawing board and try again? When and how would they do that?

      7.     Why not avoid all of those potential pitfalls and just do the right thing? Why not give all voters a direct say on any proposed system to change the way their votes are counted?

      Sooner or later, if the NDP or Liberals form the government, Canadians will demand the right to directly decide this issue. They will insist on having a vote on any new electoral system, as so many other countries and three Canadian provinces have provided their citizens in the last few decades. 

      The real question is, why would anyone who is truly committed to advancing a fairer, more representative system of voting not want to do that by the only truly democratic means possible?

      Why would any of the parties committed to electoral reform want to invite on themselves and on our nation so many unnecessary avenues for public dissent and resistance? Why would they want to compound the constitutional complexity of the task by denying all Canadians a vote?

      Electoral reform could be a great thing if it is done right. The way that the opposition parties are going about it is sewing the seeds of destruction for both the concept and for their chances of forming the next government.

      Martyn Brown was former B.C. premier Gordon Campbell’s long-serving chief of staff, the top strategic advisor to three provincial party leaders, and a former deputy minister of tourism, trade, and investment in British Columbia. He is the author of the ebook Towards a New Government in British Columbia. Contact Brown at towardsanewgovernment@gmail.com.

      Comments

      2 Comments

      Wilf Day

      Jun 30, 2015 at 9:23pm

      So many more red herrings (see Part 1 for comment on referendums: holding a referendum on our civil rights is not only not necessary, but simply not acceptable.):

      Should we pretend our winner-take-all voting system is explicitly entrenched in the constitution? Why? It certainly isn’t: see section 44 of the 1982 Constitution Act.

      Some partisans will stop at nothing to keep a system that lets them govern even though they were not the choice of six out of 10 Canadians who voted. We can anticipate a campaign of misinformation and red herrings from those who cannot compromise or collaborate.

      What threshold for parliamentary approval will be required? The same threshold it took to adopt the secret ballot, extend the vote to universal male suffrage, to women, and to aboriginal peoples, end the two-member seat in Halifax, give votes at age 18, or any other changes in how we vote: an Act of Parliament.

      We need a system that will encourage and engage voters, rather than treat the electorate like a studio audience brought in every four years. Let’s put voters, not politicians, first.

      How many more additional seats do the opposition leaders envision creating? None. Except the Law Commission suggested three more MP for the Territories.

      Would Quebec keep its fair share of representation in Parliament? This was all authoritatively reviewed by the Law Commission of Canada in 2004. Since each province would still have the same number of MPs it does today, and they would be elected only by voters in each province under any model being considered, no such issue arises.

      Could we create a separate aboriginal roll of voters electing their own MPs, as New Zealand has had since 1867, without affording aboriginals a say? Of course not, but no one has proposed that. This is an entirely new issue, not part of any proportional representation model on the table.

      However, one question raised is not a red herring: if we have a minority government with a confidence-and-supply accord, or a coalition government, what matters will be confidence votes? That will be a very important question after Oct. 19, not just for electoral reform, but for every issue.

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      Laurel L. Russwurm

      Jul 15, 2015 at 11:20pm

      <blockquote>"Last election, the NDP got almost 79 percent of the seats in Quebec with fewer than 43 percent of the popular vote, as compared to the Bloc Québécois, which won only five percent of the seats with 23 percent of the vote.

      "If the people's democratic will was proportionately represented in that province's seat count, the NDP would have won 32 seats instead of the 59 it did. The Bloc would have won 17 seats, instead of the four it actually garnered.

      "Funny, we do not hear Mulcair complaining about that "injustice", which his party hopes to repeat to form Canada's next government."
      </blockquote>

      Funny thing, the NDP democracy critic, Craig Scott criss-crossed Canada a few years ago talking to Canadians about electoral reform. On the day I saw him speak (in Waterloo, Ontario) Mr. Scott shared many such examples, including those which garnered a disproportionate return beneficial to the NDP. He cited such unfair outcomes as reasons why his party has chosen to embrace Proportional Representation-- as you can see and hear in this video clip I shot that day:

      Craig Scott on the Principle of Electoral Reform
      https://www.youtube.com/watch?v=xr-ltWJ4QNA

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