Elizabeth May & the Spectre of Proportional Representation, Part II

Elizabeth May’s Electoral System Would Require a Multilateral Constitutional Amendment

The day after the election, May appeared on CBC’s Power & Politics and both bragged that the Greens had tripled their parliamentary party (in the most basic sense, from 1 to 3) and complained that the Bloc Québécois won more seats despite winning a similar share of the popular vote as compared to the Greens.

The big winner in all this, I suppose, was the Bloc Québécois, but they only got a fraction of, or hardly  that many more votes than, the Greens, but they got 32 seats while we have three. So, again, it underscores the perversity of our first-past-the-post electoral system.

First, May provides a mendacious metric. Since the Bloc Québécois only runs in Quebec, the honest and accurate standard of comparison would consist of the Bloc’s support and the Green Party’s support in Quebec alone, not within Canada as a whole.

Share of Votes and Seats in Canada as a whole

Party Seat Count Popular Vote Vote Total
Liberals 157 33.1% 5,911,588
Conservatives 121 34.4% 6,150,177
Bloc Quebecois 32 32.5% in QC (7.7% Canada-wide) 1,377,234
New Democrats 24 15.9% 2,845,949
Greens 3 6.5% 1,160,694

Share of Votes and Seats in Quebec – the Comparison That Matters 

Party Seat Count Popular Vote
Liberals 35 34.2%
Conservatives 10 16.0%
Bloc Quebecois 32 32.5%
New Democrats 1 10.7%
Greens 0 4.5%

May promotes the false premise that we should compare the Greens’ 6.5% of the Canada-wide popular vote to the Bloc’s irrelevant Canada-wide score of 7.7%. In reality, the only breakdown that matters is what the Bloc won in Quebec, the only province where its candidates appeared on the ballot, versus the support that the Greens could muster in Quebec. This like comparison shows that the Bloc captured 32.5% of the popular vote and 32 seats, while the Greens persuaded a mere 4.5% of Quebeckers to vote for them and won no seats in La Belle Province.

Second, even under any reasonable form of proportional representation in Canada, the Canada-wide popular vote would not determine a party’s share of the seats in the House of Commons. Instead, the popular vote within each province would form 10 separate baselines for allocating compensatory party-list seats under mixed-member proportional representation, or for allocating all the seats under pure party-list proportional representation. And any attempt to impose the anti-federal centralising model on which May’s comment depends would necessarily and undoubtedly require an amendment to the Constitution of Canada under the General Amending Procedure, specifically under, section 42(1)(a) of the Constitution Act, 1982. The “proportionate representation of the provinces” in section 52 of the Constitution Act, 1867 entrenches George Brown’s principle of representation by population and means that provinces hold seats in the House of Commons in proportion to their population. (Originally, the formula for allocating seats after the decennial census, under section 51(1) of the BNA Act used Quebec’s contingent of 65 MPs as the baseline for determining the representation of the other provinces, hence the ratio or ‘proportionate’ element.)

The Parliament of Canada alone, under the Section 44 Amending Procedure, could probably adopt some kind of mixed-member proportional representation or party-list proportional representation which awarded compensatory seats within each province based on the share of the popular vote of parties within each province. This is because such a form of proportional representation would not “disturb”, under section 52 of the Constitution Act, 1867, “the proportionate representation of the provinces.” These seats awarded to political parties would at least remain within each province. But under this system, the Bloc Québécois would still have won more seats than the Greens. The “perversities” of single-member plurality which May denounces likewise afflict any form of proportional representation that respects federalism and the representation of provinces within the federal legislature. So May evidently wants Canada to masquerade as a unitary state and adopt a form of proportional representation that takes away seats from provinces, nationalises them, and pegs them to the Canada-wide popular vote.

“CBC News Opinion” (now that’s a clever contradiction if I’ve ever heard one) published a piece flowing from the same false premise; Bowen – whose surname comes too  orthographically close to mine to my liking – laments, “The BQ in particular made enormous, disproportionate gains — and in no fair world should they have more seats than the NDP or 10 times more than the Greens.” Federalism does not exist in Bowen’s conception of a fair world.  Nowhere in this piece does he acknowledge the fact that the Bloc only fielded candidates in one province and that it won 32.5% of the popular vote in Quebec versus 10.7% for the New Democrats in Quebec. Bowen’s argument relies on an illegitimate and false comparison of unlike things, exactly like May’s.

A Conference at the University of Ottawa in November 2016 

Three years ago this week in November 2016, iPolitics host a Conference on Electoral Reform; the Rideau Club hosted a session with Maryam Monsef, the Minister responsible for electoral reform, the evening of 2 November in its plush penthouse overlooking the Ottawa River, and the University of Ottawa hosted six panel discussions the following day in the neo-classical Tabaret Hall. CPAC covered the event at the University of Ottawa, though sadly not the function the previous evening where Real Lavergne, President of Fair Vote Canada, revealed in an exchange with Monsef that, in his view, a vanguard of one-quarter of the electorate suffices to impose mixed-member proportional representation on us all and that the Government of Canada should most certainly not hold a referendum on the subject.

CPAC covered the following panels at the Electoral Reform Conference on 3 November 2016:

Shortly before the proceedings started at 9:00, one of the conference organisers approached me and handed me some literature. He also unwittingly encouraged me to partake in a unique opportunity: fact-checking and correcting politicians as they speak in a way that everyone in the room would notice. As you can see in CPAC’s coverage of the six panels, the speakers sat on a platform at the front of the room but beneath a large screen which projected a Twitter feed for all – except those speakers on the stage – to see. The conference organiser no doubt came to regret what he told me next. He suggested that I and the other attendees submit questions to the conference using the electoral reform hashtag, #ERRE, and explained that the tweets would appear on the screen above. I simply couldn’t resist. Throughout the day, most of the speakers kept insisting that electoral reform “had nothing to do with the Constitution,” so I kept re-tweeting this hyperlink to the Fair Elections Act of December 2011, legislation the long title of which reveals its constitutional provenance: An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act, and the Canada Elections Act. The Parliament of Canada passed this constitutional amendment under the Section 44 Amending Procedure in order, among other things, to expand the size of the House of Commons from 308 to 338 seats and to amend the rules under section 51(1) of the Constitution Act, 1867 that establish and govern how seats are allocated to the provinces after each decennial census. These new rules, for instance, established the principle that each MP elected in 2015 and 2019 should represent approximately 111,000 Canadians. Both the parliamentary debates and the wording of the provision make clear the purpose: that each MP represent 111,000 Canadians – specifically, under single-member plurality, because if we adopted any form of PR, each MP would represent a larger number of Canadians.

For instance, the preamble of the Act to amend the Constitution Act, 1867 notes that the “average population of the electoral districts” stood at 111,116 upon the decennial census in 2011, and that therefore this figure would serve as the electoral quotient for allocating the number of representatives per province. In another words, a province with a population of around 1,100,000 would receive 11 seats. Unlike the first set of rules under section 51(1) from 1867, this new and current set of rules obviously entrenches single-member plurality (though could also accommodate single-member majority with two-round balloting or instant run-off balloting). Otherwise, the constitutional amendment would not have mentioned the “average population per electoral district” at all. Under party-list proportional representation or mixed-member proportional representation, the average population per district would necessarily increase because proportional representation depends on district magnitude. In other words, the whole province, or a series of large super-electoral districts within the province, would form the basis for allocating (compensatory) party-list seats based on the popular vote. If we switched to some form of proportional representation, that would violate the purpose of the rules under section 51(1). In taking an unprecedented step of switching from a majoritarian electoral system to a proportional one, Parliament should therefore amend this section to define, expressly, the new electoral system, as in, “Members to the House of Commons shall be elected on the principle of mixed-member proportional representation, in a combination of geographic electoral districts and party lists.” Parliament would then likewise amend the Canada Elections Act and the Electoral Boundaries Readjustment Act to reflect, respectively, the method of counting ballots and declaring winning candidates and setting the borders of electoral districts themselves.

Elizabeth May and the other electoral reform sophists on these panels kept insisting that switching electoral systems had nothing to do with the Constitution of Canada because they wanted to avoid “opening the Constitution” – as we say in Canada instead of the more prosaic “amending the Constitution” – under one of the multilateral amending procedures contained in Part V of the Constitution Act, 1982 that require concurring resolutions of the House of Commons, Senate, and provincial legislative assemblies. But they all missed my point, which the Fair Elections Act, 2011 so manifestly expressed: the Parliament of Canada can pass constitutional amendments, and we could craft a form of pure party-list proportional representation or mixed-member proportional representation or single transferable vote with preferential ballots that the Parliament of Canada alone could enact under the Section 44 Amending Procedure.

Something can both fall under the purview of the Parliament of Canada alone and be a constitutional amendment. These are not mutually exclusive propositions.

As you can see in the panel on the “Parliamentary Reform Menu,” at 37:30, Elizabeth May finally caught on to my method. She named me in a terse denunciation and literally handwaved her dismissal in my general direction shortly after delivering a passive-aggressive barb “with respect” to one of her co-panellists:

“Constitutional questions are the only ones under our current law where a referendum is possible federally. We’ve had expert witnesses – I see that Mr. Bowden there is saying that I’m wrong.”

Indeed, I did say so then, three years ago, and I still say so now.

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About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
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