Justin Trudeau Makes John Pepall’s Case Against Electoral Reform

Posted on 2016/10/20 by J.W.J. Bowden

belgium

The charming non-country of Belgium shows the dangers of proportional representation. The Christian Democrats are always in power and can never be turfed out!

On 19 October 2016, Le Devoir, the most erudite newspaper in Canada, published a very interesting interview with the Prime Minister, “Trudeau ne garantit plus une reforme electorale majeure.”

Trudeau II unwittingly made John Pepall’s case. In his 2010 book Against Reform, Pepall attributed most reform movements with dissatisfaction not with the system or institutions of government, but rather, with the policies or attitudes of the government of the day, or of the political party that happened to be in government at the time.

This pattern works on both the Left and the Right. For instance, after Stephen Harper became Prime Minister in 2006, he borrowed the Reform Party’s old matra, “The West Wants In!” and proclaimed, “The West is in.” Not surprisingly, rates of Western alienation decreased once the Conservatives formed government, and arguments for institutional reform, like the Triple-E Senate, also fell by the wayside – because what Western Conservatives really wanted was a Conservative government, not a Triple-E Senate with a Liberal government in power.

Precisely the same pattern has occurred on electoral reform. When the Conservatives won a parliamentary majority in 2011 with only 39.6% of the popular vote, some Liberals cried foul. But when the Liberals won an even larger parliamentary majority in 2015 with only 39.5% of the popular vote, the Liberals’ righteous indignation against single-member plurality evapourated and has since been replaced by fundamentally unserious apathetic platitudes on electoral reform. The New Democrats have at least opposed single-member plurality consistently over time, owing to their inability to form government at the federal level under the current system.

Pepall argues in his essay “First-Past-The-Post: Empowered Voters, Accountable Government”:

It is the ability to “throw the bums out,” more even than the ability to choose a new government, that is the most striking practical virtue of FPTP. Our governments are responsible, must answer to the voters, and are regularly defeated. Joseph Schumpeter (1987: 272) and Karl Popper (1963 and 1988, April 23) saw the ability to get rid of an unsatisfactory government as the purpose and test of democracy and condemned proportional representation for not seeing this.

To “throw the bums out” is almost impossible with proportional representation. In the 50 years after 1945 in 103 elections in Belgium, Germany, Italy, Japan, the Netherlands, Sweden, and Switzerland, the major governing party was only thrown from office six times (Pinto-Duschinsky, 1998, September 25). Major parties have remained in government for decades under proportional representation despite wide fluctuations in their votes.

And Trudeau II made precisely the same case to Le Devoir earlier this week:

Sous M. [Stephen] Harper, il y avait tellement de gens mécontents du gouvernement et de son approche que les gens disaient “ça prend une réforme électorale pour ne plus avoir de gouvernement qu’on n’aime pas”. Or, sous le système actuel, ils ont maintenant un gouvernement avec lequel ils sont plus satisfaits. Et la motivation de vouloir changer le système électoral est moins percutante.

 Under Mr. Harper, there were so many people dissatisfied with the government and its approach, and people said, “It would take electoral reform to no longer have a government that we don’t like.” Yet, under the current system, they now have a government with which they are more satisfied. And the motivation of wanting to change the electoral system is less powerful [My translation].

Thank you, Prime Minister! You just put forward one of the main arguments in favour of single-member plurality: this system allows voters to make a decision and get rid of one government entirely and replace it with another. (Yes, we only elect members and not governments directly, but the point is that proportional systems try to impose artificial majorities where none exist, and they thereby allow politicians to negotiate with each other behind closed doors and form coalitions that no one voted for either). Proportional systems in fact make throwing one government out and replacing it with another almost impossible and therefore detract from the very same goal that the Prime Minister himself advocated in his interview with Le Devoir.

Single-member plurality allows peaceful revolutions by legitimating opposition and making Belgian-style coalitions, where the Christian Democrats have almost always stayed in power for the last one hundred years, more difficult. Our system also relegates “grand coalitions” of ideologically opposing parties to true national emergencies like forming Confederation itself, fighting world wars, and muddling through great depressions, which thereby legitimates opposition in politics, gives it a healthy outlet, and prevents both left-wing and right-wing extremists from gaining traction. In contrast, Germany has suffered under “Grand Coalitions” of the Christian Democratic Union and the Social Democratic Party – what are supposed to be the two main opposing parties – from 2005 to 2009 and again from 2013 to present. Consequently, political opposition in Germany has been channelled into the far-left Die Linke and the far-right Alternative für Deutschland.

As I suggested in my entry from 12 September 2016, “the general election of 2019 will be first-past-the-post.” The Prime Minister has stated his own apathy and ambivalence to electoral reform very clearly, which suggests that he would be content with letting the issue go away; in contrast, reforming the electoral system would require that the government take a firm stance on the issue and actually argue in favour or against something concrete! At any rate, time has already run out on electoral reform for 2019, except instant run-off balloting.

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Posted in Electoral Reform, Reform | 3 Comments

Finally, A Media Outlet Writes an Accurate Story on Ontario’s Next Provincial Election!

Posted on 2016/10/19 by J.W.J. Bowden

 

journalist-meme

The Canadian Press finally wrote a factually correct and accurate story pertaining to the timing of Ontario’s next general election.

The election is currently set for the fall of 2018, but the Liberal government wants to avoid conflict with the next municipal elections, which are set for October of that year.

That said, it would have been difficult to write an inaccurate story in this instance, since the whole premise of the article rests on the fact that the Wynne government just tabled a bill to switch the next scheduled general election from the fall to the spring.

Minister Naqvi tabled earlier today Bill 45, Election Statute Law Amendment Act, 2016. The relevant provisions state:Subsection 9 (2) of the Act is repealed and the following substituted:

Subsection 9 (2) of the Act is repealed and the following substituted:

First Thursday in June

   (2)  Subject to the powers of the Lieutenant Governor referred to in subsection (1), general elections shall be held on the first Thursday in June in the fourth calendar year following polling day in the most recent general election.

The Elections Act currently states:

First Thursday in October

(2)  Subject to the powers of the Lieutenant Governor referred to in subsection (1),
            (a) a general election shall be held on Thursday, October 4, 2007, unless a general election has been held, after the day on which the Election Statute Law Amendment Act, 2005 receives Royal Assent and before October 4, 2007, because of a dissolution of the Legislature; and
            (b) thereafter, general elections shall be held on the first Thursday in October in the fourth calendar year following polling day in the most recent general election.  2005, c. 35, s. 1 (3).

When this bill passes, Ontario will join British Columbia and Alberta in setting its scheduled general elections in the spring — where they really ought to have been all along — rather than in the fall. I’ve never understood why politicians prefer campaigning and door-knocking in the cold and dark of late fall. Ontario will also be the fourth province to have amended its fixed-date election law; Manitoba, Saskatchewan, and Prince Edward Island had already amended their equivalent statutes such that if the federal and provincial generals elections were ever scheduled to overlap in October, then their provincial general elections would be postponed by six months until the following April.

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Do Journalists Who Cover Ontario Politics Know When the Next General Election Is Scheduled?  

Posted on 2016/09/26 by J.W.J. Bowden

kathleen-wynne-prorogues-legislature-for-throne-speech-monday-toronto-star

I have yet to encounter a political journalist in Ontario who will state initially and independently, without further prompting, that the next general provincial election is in fact still scheduled for October 2018 and not for June 2018 that they all keep reporting, until such time that the legislature amends the Elections Act. Steve Paikin of TVO and Robert Benzie & Rob Ferguson of the Toronto Star, and Keith Leslie & Alison Jones of the Canadian Press all insist on giving inaccurate information.

When pressed, they sometimes acknowledge that the current legislation still in fact schedules the next general election for October 2018. For instance, I mentioned to Steve Paikin on Twitter that the Elections Act does not scheduled fixed-date elections precisely every four years, but instead schedules elections in the October of the fourth calendar year after the previous election — which means that this 41st Legislature is scheduled to live longer than four years because the 41st general provincial election took place in June 2014.

First Thursday in October

(2)  Subject to the powers of the Lieutenant Governor referred to in subsection (1),
            (a) a general election shall be held on Thursday, October 4, 2007, unless a general election has been held, after the day on which the Election Statute Law Amendment Act, 2005 receives Royal Assent and before October 4, 2007, because of a dissolution of the Legislature; and
            (b) thereafter, general elections shall be held on the first Thursday in October in the fourth calendar year following polling day in the most recent general election.  2005, c. 35, s. 1 (3).

https://twitter.com/JWJBowden/status/778798643788644352

https://twitter.com/JWJBowden/status/778933517812166660

Paikin and others should not act as if their insider knowledge of the Chief Electoral Officer’s report and the Wynne government’s press release from June 2016 substitutes for providing a simple explanation like this: “While the next general provincial election is currently scheduled for October 2018, the Wynne government has stated its intention to implement the Chief Electoral Officer’s recommendation to move the date from the fall to the spring (probably early June) and will soon table legislation to that effect.” That’s all that they’d have to say in order to bring their reporting in line with all the facts.

It’s also true that Attorney-General Naqvi mentioned on September 22nd that the government intends to table legislation in this new session that would move the scheduled election from the fall to the spring. But until the legislature amends section 9(2)(b) of the Elections Act and replaces “first Thursday in October” with something like “second Thursday in June,” the next general provincial election remains scheduled for October 2018. I say “scheduled” because the Premier can, of course, advise the Lieutenant-Governor to dissolve the 41st Legislature at any time for any reason prior to the scheduled date. In other words, only the legislature can amend the Elections Act and determine when the next general election is scheduled, but because section 9(1) of the Act, the Premier retains the authority to advise and receive an early dissolution outside of the scheduled date.

The facts are both more complex and more interesting than the inaccurate account that Ontario’s political journalists have been letting on thus far. But if journalists won’t report on the facts, then who will?

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Execute Order 66: The Royal Recommendation

Posted on 2016/09/23 by J.W.J. Bowden

 

I just stumbled upon something hilarious that combines my geeky interests in Star Wars and British parliamentarism.

In Commonwealth Realms, the government must approve of any and all money bills and confer upon it the Royal Recommendation before parliament can pass them into law. This measure preserves Responsible Government by ensuring that Ministers take responsibility for all spending that parliament grants, and it prevents pork-barrelling and log-rolling that has historically characterized the US Congress and, as Lord Durham noted in his report, the assemblies of the Canadas before the grant of Responsible Government.  Currently, section 54 of the Constitution Act, 1867 codifies the Royal Recommendation as supreme law.

For several decades, the Standing Order of the British House of Commons that mandated that all money bills receive Royal Recommendation was Standing Order 66. Today, Standing Order 48 now contains the requirement for Royal Recommendation:

48. This House will receive no petition for any sum relating to public service or proceed upon any motion for a grant or charge upon the public revenue, whether payable out of the Consolidated Fund or the National Loans Fund or out of money to be provided by Parliament, or for releasing or compounding any sum of money owing to the Crown, unless recommended from the Crown.

So ministers could have stood up in the Commons and said, “Her Majesty’s Government has executed Order 66”, preferably in a raspy and creepy voice like that of Ian McDiarmid as Emperor Palpatine.

Posted in History of British North America, Humour | 2 Comments

The General Federal Election of 2019 Will Be First-Past-The-Post

Posted on 2016/09/12 by J.W.J. Bowden

omalley-2016-09-electoral-reform

Introduction

Kady O’Malley’s column in the Ottawa Citizen of 27 August 2016, “A Lot Would Have to Happen If There’s A Referendum on Electoral Reform,” contained some bizarre, false premises on the nature of electoral law, from the electoral system itself, to holding a referendum on altering it, to the fixed-date elections law.

While we’re speculating wildly, why assume a referendum would simply be rolled into the campaign already tentatively scheduled to bring Canadians to the polls in October 2019? A stand-alone vote [on a referendum] could be held within six months of the call – next October, let’s say – which should give the electoral agency [Elections Canada] sufficient time to adjust if necessary. If that’s not enough time — well, the fixed election date can be reset on the recommendation of the chief electoral officer, so if voters did opt for change that would require rewiring the mechanics, it could be bumped for up to a year without running afoul of the constitution.

I shall examine these premises in order.

  1. A referendum on electoral reform could be held in October 2018;
  2. That Elections Canada would only require twelve months to organize itself around a new electoral system;
  3. That the Canada Elections Act allows the Chief Electoral Officer to recommend postponing the fixed-date election by up to one year.

Three Stranger Things

First, in principle, a referendum could be held, but at this stage, I doubt that one will be held, if only because a referendum would force the Liberals to take a coherent viewpoint on electoral reform and advocate for one system over another. Thus far, the Prime Minister has signalled his support for Australian-style instant run-off balloting, but the Trudeau II government itself has refused to make a coherent argument and case for any electoral system; instead, Minister Monsef keeps banging on about the inherent virtue of incessant “consultation” — provided that “consultation” does not involve a referendum — and her website states ambiguously that “Federal electoral reform is part of the Government’s commitment to change.” But the Liberals have refused to provide a coherent rationale and argument for “change” because they regard “change” as axiomatically good in an of itself and treat it as a given that does not need to be explained. Cabinet might have to introduce a bill to amend the existing Referendum Act, but under the current legislation, it is the responsibility of Cabinet to trigger a referendum through an order-in-council.

Second, Elections Canada could prepare to administer the next scheduled general election in 2019 under a new electoral system if and only if that new system were the ranked ballot of Australian-style instant run-off balloting precisely because it would not require any constitutional amendment and would keep the boundaries of the existing electoral districts intact. In short, this is because switching to mixed-member proportional representation (which includes a mixture of seats based on larger geographic electoral districts and compensatory party seats divorced from geographic constituencies) or to single transferable vote (which is based on larger multi-member geographic electoral districts) would each require a constitutional amendment and altering the boundaries of electoral districts — a process which would take almost two years. Furthermore, the current wording of section 51(1) of the Constitution Act, 1867 means that the Decennial Census is a necessary condition for redistributing the seats and establishing the electoral boundary commissions, and this mandatory headcount will next occur in 2021. (You can read a more detailed explanation of this argument in my piece in the Macdonald-Laurier Institute’s Inside Policy, or here on Parliamentum).

Third, the Canada Elections Act most certainly does not allow the date of the next scheduled general election to be postponed up to one year on the recommendation of the Chief Electoral Officer! At most, he can recommend that the general election be postponed for two weeks — and even then, only if the original date conflicted with a religious or cultural day of some kind. This is all very obvious upon any reasonable interpretation of a plain reading of section 56.2 of the statute.

Alternate day

56.2 (1) If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall recommend to the Governor in Council that polling day be that other day.

(2) If the Chief Electoral Officer recommends an alternate day for a general election in accordance with subsection (1), he or she shall without delay publish in the Canada Gazette notice of the day recommended.

(3) If the Governor in Council accepts the recommendation, the Governor in Council shall make an order to that effect. The order must be published without delay in the Canada Gazette.

(4) The alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.

(5) An order under subsection (3) shall not be made after August 1 in the year in which the general election is to be held.

Normally, the election would be held on “the third Monday of October in the fourth calendar year following polling day for the last general election”. However, under section 56.2(1) if this date would otherwise conflict “with a day of cultural or religious significance or a provincial or municipal election”, then the Chief Electoral Officer can recommend that election day occur instead with the “limitation” (as the marginal note for section 56.2(4) says) that “the alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.” In other words, election day can only be delayed for either one day or one week. Furthermore, section 56.2(5) adds that if the Governor-in-Council accepts the Chief Electoral Officer’s recommendation, it cannot issue the proclamation permitting this delayed “after August 1 in the year in which the general election is to be held.” Therefore, a delay must be planned at least two and a half months in advance, which would in turn probably exclude, in practice, any reason not already listed in section 56(2).1, like natural disasters, since they tend not to announce themselves 10 weeks in advance. Instead, section 59  of the Canada Elections Act covers this possibility.

59 (1) The Governor in Council may order the withdrawal of a writ for any electoral district for which the Chief Electoral Officer certifies that by reason of a flood, fire or other disaster it is impracticable to carry out the provisions of this Act.
(2) If the Governor in Council orders the withdrawal of a writ, the Chief Electoral Officer shall publish a notice of the withdrawal in the Canada Gazette and issue a new writ ordering an election within three months after publication of the notice.
(3) The day named in the new writ for polling day may not be later than three months after the issue of the new writ.

Essentially, these emergency provisions allow the Governor-in-Council, on the Chief Electoral Officer’s recommendation, to delay the election of members only in the electoral districts affected by a natural disaster like a flood, since it would be unnecessary to delay the entire general election itself.

Conclusion

One of the few concrete effects of the fixed-date election laws in Canada has been to limit the maximum life of a parliament or legislature from five years to somewhere between four and five years. Therefore, section 56.1 of the Canada Elections Act acts as a hard limit for the date of the next election unless parliament decides to amend or repeal the provision and revert back to baseline established in section 50 of the Constitution Act, 1867 and re-affirmed in section 4(1) of the Constitution Act, 1982.  So while delaying the next general election and “bump[ing it] for up to a year” would indeed not  “run afoul of the constitution,” it would violate the Canada Elections Act. As that legislation currently stands, it most certainly cannot do what Kady O’Malley claims.

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