What Does “Calling an Early Election” Mean Anyway?


I took this photo on a trip to Quebec City in 2008

Introduction

Judging by recent media reports, the answer depends upon the length of the writ and not necessarily on the date of the election itself, as the case of Quebec in 2018 and Canada in 2015 demonstrate.

We first encountered this problem with the federal general election of 2015, which was the first to occur as scheduled by the fixed-date election legislation (section 56.1 of the Canada Elections Act) in October 2015 but which also saw the longest writ, at 79 days, since the 1870s, and therefore a dissolution around the Civic Long Weekend in August instead of in September. Since 2015, Canadian journalists have decided that “calling an early election” means (or at least includes) instances where the Prime Minister or Premier opts for a writ longer than the minimum number of days required by law. Of course, this scenario which affected the federal general election of 2015 and might describe Quebec’s general election of 2018 differs from instances where the First Minister has decided to pursue early dissolution such that the date of the election itself (i.e., the main voting day) occurs months or years before the date scheduled in a fixed-date election statute.

Since June 2018, French-language media in Quebec have been reporting on the de facto pre-writ election campaign under way in that province. One column mentioned the possibility of an “early election,” which I at first took to mean that the election would happen before the scheduled date. In fact, Marc-Andre Gagnon of Le Journal de Quebec meant that Premier Couillard would opt for a longer election campaign that would still see Quebeckers go to the polls on the scheduled date.

Three possible factors here come into play (though only the first two apply to Quebec):

  1. A fixed-date election statute which schedules the day of the election (i.e., the main voting day itself) in x month every four years;
  2. A statutory requirement that election campaigns last a minimum number of days (usually between 30 and 40); and,
  3. The absence of a corresponding statutory provision limiting the maximum number of days that an election campaign can last.

Quebec’s Fixed-Date Election Laws

Quebec adopted its fixed-date elections in 2013 but spread the relevant provisions of this concept across two statutes, La loi électorale du Québec and La loi sur l’assemblée national du Québec, which have to be read together. It is the only province to place its fixed-date election provisions in more than one statutes – so you might say that Quebec is distinct.

Section 129 of the Elections Act contains the main provision and schedules elections for the first Monday in October every four years, which puts the date of upcoming elections in 2018 on 1 October.

En application du deuxième alinéa de l’article 6 de la Loi sur l’Assemblée nationale (chapitre A-23.1), les élections générales qui suivent l’expiration d’une législature ont lieu le premier lundi du mois d’octobre de la quatrième année civile suivant celle qui comprend le jour de la fin de la législature précédente.

This section also contains the non-derogation clause preserving the Lieutenant-Governor’s authority to dissolve the legislature at any time on and in accordance with the Premier’s advice:

Le présent article n’a pas pour effet de porter atteinte au pouvoir du lieutenant-gouverneur de dissoudre l’Assemblée nationale avant l’expiration d’une législature.

This non-derogation clause emphasizes that under the normal course of events, the legislature dissolves automatically by efflux of time if it reaches its maximum lifespan with the line “the general elections which follow the expiration of the legislature.” Crucially, however, this wording takes into account the possibility that some legislatures might not “expire” but would instead be dissolved early, as occurred in Quebec in 2013 when Premier Marois obtained an early dissolution. The law also does not attach any conditions to the authority of the Lieutenant Governor, nor does it attempt to place any restrictions on how the Premier can advise the Lieutenant Governor.

Section 6 of La loi sur l’assemblée national du Québec goes farther than the equivalent provisions of other provincial statutes in explicitly limiting the maximum lifespan of a legislature to between four years and five years, instead of simply five years. It says that “each legislature expires on 29 August” every four years and repeats the non-derogation clause preserving the Crown’s authority over dissolution.

Une législature commence dès la réception par le secrétaire général, après des élections générales, de la liste des candidats proclamés élus transmise par le directeur général des élections en vertu de l’article 380 de la Loi électorale (chapitre E-3.3).

Chaque législature expire le 29 août de la quatrième année civile suivant celle qui comprend le jour du scrutin des dernières élections générales. […]

Seul le lieutenant-gouverneur peut dissoudre l’Assemblée nationale avant l’expiration d’une législature.

Taking together section 6 of the National Assembly Act and section 129 of the Elections Act means that Quebec’s 42nd general election must last a minimum of 34 days, between 29 August and 1 October, inclusive.

The English-language CBC reported on 7 August 2018 that “Couillard May Call Quebec’s Election Earlier Than Planned” and that Quebec’s general elections must last between 33 and 39 days. I think that the CBC derived that figure of a maximum writ of 39 days from section 131 of the Elections Act, which says:

Sauf dans le cas des élections générales tenues à la date prévue au deuxième alinéa de l’article 129 ou au premier alinéa de l’article 129.2, le scrutin a lieu le cinquième lundi qui suit la prise du décret si le décret est pris un lundi, un mardi ou un mercredi, et le sixième lundi si le décret est pris un autre jour.

My translation:

Except in the case of general elections held on the scheduled date in the second clause of section 129 or in the first clause of section 129.2, the vote takes place on the fifth Monday following the issuing of the proclamation [of dissolution and return of writs and the summon of the new legislature pro forma] if the proclamation is issued on a Monday, a Tuesday, or a Wednesday, and on the sixth Monday if the proclamation is issued another day [i.e., Thursday, Friday, Saturday, or Sunday].

So if Couillard opts for dissolution and drawing up the writ on Thursday, 23 August, as the CBC article suggests, instead of on Wednesday, 29 August, then 1 October 2018 would still be the sixth Monday and the election would therefore fall on the same day. The election period could last for 40 days, 23 August to 1 October, inclusive. Quebec’s fixed-date election provisions constrain election campaigns in a narrow band between 34 and 40 days, inclusive , which provides consistency; any difference within that range hardly impose a grave burden on political parties or the electorate.

In any case, a longer election campaign would mean that the Lieutenant-Governor dissolves the 41st Legislature before 29 August – the day that the legislature would otherwise expire naturally by efflux of time. And since the National Assembly Act and the Elections Act both reaffirm that the Lieutenant-Governor can dissolve the legislature early at any time on the Premier’s advice, Premier Couillard could advise an “early dissolution” between 23 August and 28 August, inclusive, and the election itself would still happen as scheduled on 1 October. But this would mean not an “early election” per se, but instead a longer election campaign.

I took this back in 2008.

The Never-Ending Amendments to Fixed-Date Election Laws

In reality, Prime Minister Harper did not call an “early election” in 2015, and Premier Couillard of Quebec would likewise not call an “early election” in 2018, simply by extending the writ; these elections occurred and will occur on the precise day which Canada’s and Quebec’s fixed-date election laws scheduled them. Instead, Harper opted and Couillard might opt for longer election campaigns. Fixed-date election laws have already created de facto pre-writ campaigns in at least the six months prior to the elections that they schedule. What Harper did and what Couillard might do is simply make part of that de facto pre-writ campaign period part of the de jure writ, which in fact increases accountability by subjecting political parties to limits and rules on advertising and spending that apply only during the writ but not before the writ.

One possible solution lies in the bill that the Trudeau government recently tabled, which would prescribe a maximum duration of the writ of 50 days in addition to the minimum of 36 days already established. The bill would also amend the Canada Elections Act to recognize what has already happened by imposing limits on political advertising in the six months leading up to scheduled elections (thus from April to dissolution in September). Quebec has already prevented this problem, but any other provinces which have not might consider adopting Quebec’s model or similar wording to the Trudeau government’s bill C-76.

Ultimately, fixed-date election laws have created more problems than they’ve solved – and they never even solved the alleged problem that they were supposedly originally designed to solve: snap elections (as I’ve outlined here, here, and here). Manitoba, Saskatchewan, Prince Edward Island, Ontario, and Newfoundland and Labrador, have already amended their fixed-date election laws in order to avoid potential overlap with scheduled federal elections. British Columbia also altered its schedule from spring to fall. Once again, Quebec shows its distinctiveness, being the only province the original legislation of which provided that provincial elections can be delayed if they would overlap with either federal or municipal elections.

The Small Things Add Up

We should value precision and accuracy greater still in this age of post-modern post-truth or untruth and properly distinguish between these two things.

Others disagree. For instance, a few journalists took offence at my blog posts in the fall of 2016 regarding the schedule of Ontario’s general elections; one of them from the National Post even blocked me on Twitter, much to my amusement. They were reporting that the legislature of Ontario had amended the schedule of fixed-date elections from every fourth October to every fourth June even before the Wynne government had tabled the bill and later before the bill had become law. In other words, they were reporting that something had happened even though it had, in fact, not yet happened.

I found (and still find) that very odd if only because it was a pointlessly inaccurate omission that the journalists could have rectified in a few words, caveating their assertion into something like, “The Wynne government plans to introduce legislation” (or “has introduced legislation” as the legislative process progressed) that will shift scheduled elections from October to June, which means that the next provincial election will probably take place in June 2018. This incident illustrated strongly the Boys on the Bus mentality that too often affects journalists when they receive common briefings and then generate unconscious narratives after talking amongst themselves; this sloppiness opens up space for legitimate criticism of journalistic accuracy and erodes trust in the fourth estate as a whole, which, in turn, facilitates the rise of fake news in this social media age. The inaccuracy is both baffling and completely unnecessary. Dismiss me as a pedant if you wish, but know also the consequences of consistently imprecise and inaccurate journalism.

We should distinguish between snap elections, where the general election takes place several months or years before the date scheduled in fixed-date elections provisions, on the one hand, and longer election campaigns, where the general election still takes place on the scheduled date as outlined in a fixed-date election law but where the dissolution itself happens a few days or weeks earlier than the minimum duration of the writ period would require.

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3 Responses to What Does “Calling an Early Election” Mean Anyway?

  1. Yes I think all Ronald’s detail about the Australian laws is quite correct.

    One interesting one to ponder for the future: with the Australian states all now having legislated fixed four-year terms, will a premier in desperate political need of an early election one day attempt to advise a state governor to call one anyway, claiming vice-regal authority despite the terms of legislation?

    There was a hint of such a prospect in Victoria in 2013, when the Legislative Assembly seemed to be gridlocked at 44:44 (having unwisely been moved to an even number of members a decade previously). Amid much hand-wringing the debate dealt not with a premier wanting an early election – he certainly did not – but rather that it might be in the public interest to resolve the situation by an early election. However the unfortunately worded 2003 (?) revised state constitution would not allow an early election even if the government and the Assembly wished to go to one, because the state governor apparently now lacked the power to even call one early. As it happened, that political crisis abated, and the issue was never tested.

    One key terminological difference to ponder (at least in Australia, I am not sure how the terms meanings work in Canada) is that between a ‘prerogative’ power – which the governor may (and should) exercise on the advice of the premier – and a ‘reserve’ power – which refers to the case of a governor taking emergency action in their own discretion despite a lack of advice from the premier, (which properly should only happen if the incumbent premier has lost a confidence vote). The Australian legislation – perhaps including that in Queensland from 2015, whose drafters would have learned from the recent Victorian tensions – may deliberately be contemplating ensuring that the governor has clear legal powers of the ‘reserve’ nature, even if the ‘prerogative’ options have been constrained by legislation, for just such a rare crisis.

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  2. James, for comparison, Australia’s national House of Representative still has no fixed-term electoral cycle system. The House has a constitutional maximum term of three years (relatively short by world standards) from its first sitting following the previous election (which starting date is itself a variable thing, but is usually about two months after each election). After dissolution, the campaign is a more-or-less fixed 33 days, give or take some flexibility about selecting the actually date fr the issuing of the writs. So maxim House electoral cycles are roughly 3 years 3 months.

    For most of the 20th century, the average term length was significantly shorter, at around 2 years 3 months – really remarkably short (among national parliament terms only the US House of Representatives is shorter). But for the last 20 years or so ‘full terms’ of close to 3 years have been the norm. The need to cleave close to the electoral cycle for the Senate – which must fall in the period July-June in each third year – matters, since governments are loath to see the House and Senate elections conducted on different dates (which happened a little in the 1960s and is not remembered fondly).

    One result of this variation is that from any point about 2 years into a term, speculation in Australia of an ‘early election’ begins. While there is no precise definition of the expression, it has nothing to do with the number of weeks of the campaign, which are fairly tightly limited. (In 2016 there was a 12-week campaign, but that was because the PM announced he had chosen a date three months in the future; the House was not dissolved and the writs were not issued until the necessary date.) As a rule of thumb, anything short of a term lasting 2.5 years would probably be deemed going to an election ‘early’. It might depend on the point in the calendar year chosen, and the need to keep the House and Senate in cycle, which factors might bee seen to make a slightly early election an appropriate decision. The term does have a strong sense of the incumbent PM calling the election to a timing which is politically convenient.

    All the 8 Australian states and territories now have four-year electoral cycles defined in their legislation; only the national House now has a term length at the discretion of the head of government.

    Liked by 1 person

    • Ronald A. McCallum says:

      Malcolm,

      “(In 2016 there was a 12-week campaign, but that was because the PM announced he had chosen a date three months in the future; the House was not dissolved and the writs were not issued until the necessary date.)”

      Just to clarify that there were very good reasons for that 12-week campaign:

      First: Following a Double Dissolution Full Senate Elections, the Senators terms are backdated to the previous First of July in accordance with the Constitution of the Commonwealth of Australia, Section 13 re: Rotation of Senators: ” For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election.”

      Earlier Full Senate Elections in the six co-sovereign Federated States would then require Half Senate Elections by early May 2018, rather than May 2019 with a 2nd July 2016 Full Senate Elections.

      Second, the Governor General’s Extraordinary Constitutional Power to dissolve both Houses of Parliament expires on Wednesday the 11th of May in accordance with Section 57: “But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.”

      Third: Apparently, the Australian Electoral Commission has said in March that it will take them at least three months to reprogram their powerful Easy Count Senate software program following the abolition of the Group Voting Tickets (GVTs) and the Below The Line (BTL) compulsory preferential voting. I am assuming that the IT personnel will be able to work on the reprogramming while other AEC personnel will be in election mode.

      Also, the High Court of Australia have ruled that the writs for Half Senate Elections can NOT be issued earlier than twelve months prior to the expiration of Senators’ terms as Section 13 states the following: ” The election to fill vacant places shall be made within one year before the places are to become vacant.”

      Malcolm Turnbull has painted himself into a corner with his non-negotiable stance and threats directed at the Senate.

      Therefore, HIs Excellency General the Honorable Sir Peter J. Cosgrove on the constructive advice of the Prime Minister dissolved the Senate and the House of Representatives on Monday the 9th May 2016, and issued eight Writs for the Election of the Members of the House of Representatives — one for each State and Territory — and two Writs for the Election of Senators for each of the two Territories on the 16th May 2016. Furthermore, he invited the Governors of the six co-sovereign Federated States to issue Writs for the Election of Senators under Section 12 of the Constitution on the 16th May 2016 for the 2nd July 2016 General Elections.

      “All the 8 Australian states and territories now have four-year electoral cycles defined in their legislation;”

      The State of Queensland elected their last Legislative Assembly on a maximum three year life last November. The four-year-cycles begin with the General Elections in 2020:

      Here is a summary of what happened in the 2015 Queensland State Referendum:

      “At a referendum on 19 March 2016 Queenslanders voted to approve a Bill to move to a fixed four-year parliamentary term from the date appointed for the return of the writs. In future, under the Constitution of Queensland 2001 (to be amended by the Constitution (Fixed Term Parliament) Amendment Act 2015 (Qld)), ordinary general elections are to be held on the fourth Saturday in October every four years. However, this will not come into effect until after the next Queensland election (the Constitution (Fixed Term Parliament) Amendment Act 2015 (Qld) commences when the Governor of Queensland summons the Queensland Parliament to meet after the next general election).[15]”

      Oh, by the way, the Constitution (Fixed Term Parliament) Amendment Act 2015 (Qld) does NOT deprive His/Her Excellency the Governor of the State of Queensland in the Commonwealth of Australia the reserve powers that the Governor enjoys as per Section 19G:

      “This part does not affect the exercise of the Governor’s reserve powers under established constitutional conventions.”

      Therefore, it seems that the Governor General of the Commonwealth of Australia and the Governors of the Australian States still have Constitutional and reserve powers.

      Ronald A. McCallum, B. A. (History and Political Science)

      Ontario, Canada

      James, May I ask what your policy on commenters posting URL addresses as sources for further information, please?

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