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OPINION: How to get to electoral reform

Scenario: the year is 2007 (or 1997). A political science class is presented with a hypothetical election outcome where parties A and B have each received 40% of the vote and party C the remaining 20%. The class is asked to write an essay: This is the Government the People have Elected. Many agree that, while possible in theory, such an election outcome is all but impossible in reality. Would many students have recognized that the exercise is based on a trick question?

Executive Powers

Governance involves executive and legislative powers. We correctly refer to the legislative branch by its title, Parliament (federal) or Legislative Assembly (provincial) and to the executive branch simply as “the government.” Governments thus defined, be they federal or provincial, are not elected. Section 9, Part III of Canada’s Constitution Act, 1867, leaves no doubt on that point: “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” This is in contrast to the Constitution of the United States, Article II, Section 1: “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected.”

Our system of government’s roots reach back to the early years of the 18th century, the evolution of democratic governance in Britain. Our constitution assigns executive powers to a monarch whom we share with other members of the British Commonwealth of Nations. That monarch is represented in Canada by the Governor General at the federal level and by a Lieutenant Governor in each province. The Monarch appoints the Governor General on the recommendation of the Prime Minister who is in turn appointed by the Governor General. At the provincial level the Governor General appoints the Lieutenant Governor on the advice of the Premier who is in turn appointed by the Lieutenant Governor.

Citizens are not engaged, directly or indirectly, in matters concerned with executive powers. Beauchesne’s Parliamentary Rules and Forms maintains that the British North America Act represented “no great development from colonial times.” Quasi-colonial governments prevailed in the Yukon until 1976 and in the Northwest Territories (NWT) until 1979. Commissioners James Smith (Yukon) and Stuart Hodgson (NWT) were the last holders of both de facto and de jure executive powers within their territories. Their decisions were subject to political scrutiny by elected territorial councils, but these councils could not overrule their commissioners’ executive decisions. Smith and Hodgson were not accountable to the elected councils, much less to the citizens residing in their territories; they were accountable to the federal Minister of Indian and Northern Affairs.

A review of recent British Columbia history corroborates that “the will of the people” is at best a marginal consideration in the awarding of executive powers:

-          Glen Clark, leader of the BC NDP, was sworn in as the 31st Premier in 1996 following a general election where 39.45% vote for NDP candidates, 41.82% for Liberal candidates, and 18.73% for other candidates.

-          Christy Clark, leader of the BC Liberal Party, was sworn in as British Columbia’s 35th Premier in 2011 even though she herself had not been elected to the Legislative Assembly.

-          John Horgan, leader of the BC NDP, was sworn in as the 36th Premier in July 2017 following a Legislative Assembly vote of non-confidence in the government led by Liberal leader Christy Clark. In the immediately preceding general election (May 9, 2017) 40.36% voted for Liberal candidates, 40.28% for NDP candidates, and 19.36 for other candidates.

The constitution does not restrict the monarch’s executive powers in any way. The monarch’s executive powers are constrained only by tradition and convention, a doctrine that calls on the monarch’s representative to acquiesce to Privy Council’s advice (cabinet), a committee appointed in accordance with the monarch’s constitutional executive powers.

The constitution does not require a leader’s party to have received the most votes in a general election (Glen Clark, 1996) or to hold the most seats in the legislature (Horgan, 2017) to be sworn in as first minister. A party leader need not even be elected to the legislature (Christy Clark 2011). To summarize the process of entrusting executive powers in Canada as closed circuit theatre performed for the benefit of a citizen-audience may be overstating the process, but it would not misrepresent it.

 Legislative Powers

            Democratic legislators have a dual responsibility: first, to debate laws proposed by the executive or from within its own ranks (private member’s bill), to modify such draft laws to make them acceptable to the majority, or to reject them. The legislators’ second responsibility is to hold the executive (the “government”) to account in its execution and administration of laws enacted by the legislators. The relationship between legislative and executive powers goes to the heart of what distinguishes democratic from autocratic governance.

Divergent forms and structures of that relationship have been adopted by democratic societies. The US constitution’s approach can be traced to that country’s revolutionary break from the British Crown. That country’s historical experience indicates that a strict separation of powers alone cannot guarantee stable governance. An important distinction of a US-style constitution from one based on the Westminster model, such as Canada’s, is that the former does not permit a person to simultaneously hold executive and legislative powers.

The Constitution states that “Members of [the Queen’s Privy Council] shall be from Time to Time chosen and summoned by the Governor General” and “may be from Time to Time removed by the Governor General” (sec. 11). Convention and tradition compel the Governor General or Lieutenant Governor to comply with the advice of the first minister in such appointments and removals. When the first minister resigns between elections, as was the case in British Columbia in 2011, convention and tradition call on the Lieutenant Governor to appoint the leader of the political party with the most seats in the legislature to head the executive, even if that leader is not an elected member of the legislature, and without regard as to the process by which that leader attained the position of party leader.

In summary, the monarch’s representative, having been appointed by the monarch on the advice of the first minister, appoints the first minister and, on that same first minister’s advice, appoints or removes all cabinet ministers. How the cabinet is structured in terms of numbers, composition, or assigned responsibilities is at the first minister’s sole discretion.

When a person is elected to represent a constituency to exercise legislative powers and is subsequently appointed to also exercise executive powers, which duty takes precedence? How does a Minister of Finance reconcile her executive duties to manage the government’s finances with her duty to hold the Minister of Finance accountable in the administration and execution of those duties? To whom is the Minister of Transport accountable? Is it to the Premier on whose advice he was appointed by the Lieutenant Governor and on whose advice he may at any time be relegated to the legislature’s back benches? Is it to his constituents without whose support he would not have been appointed to cabinet in the first place?

The potential for conflict between executive and legislative duties and responsibilities was recognized early on. Rather than amending the constitution to eliminate the conflict, the problem was resolved with the introduction of ministerial by-elections. When a legislator was appointed to cabinet, her legislative seat was deemed to be vacated and a by-election was called to fill the vacancy. The constitution does not preclude an individual to simultaneously be a member of the legislative and executive; a newly appointed minister was thus free to contest the by-election to fill his own vacancy. The idea was to give voters the choice to either consent to their representative holding concurrent legislative and executive powers or to elect a new representative to the legislative chamber. Such by-elections were rarely contested, thereby acclaiming the incumbent and nullifying the voters’ choice. Over time this seemingly meaningless practice was abandoned. British Columbia discontinued the practice in 1929, Canada followed suit in 1931.

The evolution of political parties over the past century has contributed significantly to the strengthening of executive powers at the expense of legislative powers. Radical developments in communication technologies in that same period added fuel to that trend. Political parties gained the capacity to attract enormous financial, research, and communication resources and with that attain a dominant role in election campaigns. The parties’ election campaign supremacy contributes significantly to voters increasingly expressing their preference in terms of a specific political party or party leader rather than in terms of the local candidates.

Political parties today hold a commanding role in political discussions and debates. As a consequence political reports by news agencies today are as likely, if not more so, to refer to governments by the governing party or the first minister rather than by that government’s constitutional status. We hear and read about what the “Trudeau government” or the “Conservative government” is doing rather than what the “federal government” is doing. Voters for their part declare their intention to vote for a preferred political party or its leader more so than to the local candidate.

How a first minister responds when his party loses control of the legislative assembly following a general election reveals the reality of the executive’s supremacy over the legislative. In the 2015 federal election the Conservative party lost control of the House of Commons, but its leader won the Calgary Heritage constituency with 63.77%. In the 2017 British Columbia election the Liberal party lost control of the Legislative Assembly, but its leader won the Kelowna West constituency with 59.6%. The two re-elected legislators resigned their seats a few months after having been elected. Both had campaigned hard for re-election, and both were re-elected by strong majorities. Had either one been defeated, their constituency’s new representative would have been sworn in as Member of Parliament or of the British Columbia Legislative Assembly. Winning a legislative seat, nothing more and nothing less, is what was at stake in Calgary Heritage and Kelowna West general elections.

To a first minister, however, constituency support, even at 60%, is little more than a technical detail in their quest to extend their hold on executive power; the executive, not the legislative, is where real power rests under our constitution. Neither party leader declared during the election campaign that they would not be prepared to represent their constituencies if they could not retain control of both the executive and the legislative.

We abandoned ministerial by-elections because they were a nuisance. A sardonic observer may suggest that we could avoid the nuisance of post-election by-elections by electing standby “just-in-case” legislators in party leader ridings to be sworn in in the event a party leader is disappointed by the outcome of a general election.  

The citizens’ constitutional powers are limited to electing legislators. These legislators’ powers have been weakened significantly, usurped by executive powers, and as a consequence, changing practices and customs over the past 150 years. We could expand the citizens’ role in our democracy by amending the constitution by the same process it was amended to give us the Canadian Charter of Rights and Freedoms. That, however, is an unlikely prospect. What we can do, what is possible, is to invigorate the effectiveness of the legislators we elect. That objective requires that we reform our electoral process.

Changing The Voting System:

Canada

Since 1921 the question of how the ballots cast by voters in an election are converted into legislative seats has been studied, examined, considered, and reviewed on nine occasions by a host of committees and commissions. We witnessed the most recent such effort in 2016: the House of Commons’ Special Committee on Electoral Reform (ERRE). (A number of provinces have wrestled with the same question repeatedly over the same period).

The gist of the problem facing our electoral system was already evident in 1921 when a House of Commons Special Committee reported that “it must be apparent to all that the present system of election in single-member constituencies meets fully the purpose intended only when not more than two candidates are nominated.” It is equally apparent that, notwithstanding exhaustive efforts by multiple jurisdictions, a resolution to the problem identified in 1921 is as elusive in 2017 as it was nearly a century ago!

ERRE’s findings are summarized in 13 recommendations. The first recommendation calls on the Government to develop a new electoral system “to minimize the level of distortion between the popular will of the electorate and the resultant seat allocations in Parliament.” ERRE’s recommendation 11 is of specific relevance to this paper: “that electoral system reform be accompanied by a comprehensive study of the effects on other aspects of Canada’s ‘governance ecosystem’, namely the relationship between, and operations of, the legislative and executive branches of government.”

ERRE considered vast volumes of information, including some disturbing statistics relating to the 2015 general election:

-          First-past-the-post (FPTP) converted 39.5% of the popular vote into 184 seats (54% of the 338 parliamentary seats), giving one political party effective control over executive and legislative powers;

-          The voters who supported the candidates elected to these 184 seats add up to just 26.1% of participating voters, only 17.9% of citizens entitled to vote.

The seat-to-vote allocation resulting from the 2015 general election was as follows:

Liberal                         1 seat per 37,735 votes,

Conservative               1 seat per 56,703 votes,

New Democrat            1 seat per 78,872 votes,

Bloc Québécois           1 seat per 82,114 votes,

Green                          1 seat per 602,944 votes,

A total of 141,450 voters are left without representation. Liberals would hold 11 seats if the Green’s seat-to-vote ratio were applied. With the Liberals’ seat-to-vote ratio Greens would have 16 seats. Such is the magnitude of FPTP’s seat-to-vote distortion.

ERRE involved 12 Members of Parliament: 5 Liberals, 3 Conservatives, 2 New Democrats, 1 Green and 1 Bloc Quebecois. They had been elected by a combined total of 330,333 voters. Their report and recommendations were dismissed, stricken from the House of Commons agenda by the decision of one Member of Parliament who was elected by 26,391 voters in one constituency. Section 9, Part III of Canada’s Constitution Act, 1867 placed that Member of Parliament in the position to impose his decision on the other 337 Members of Parliament. The fate of the ERRE report adds emphasis to the Committee’s concerns about Canada’s “governance ecosystem.”

The Prime Minister’s election promise notwithstanding, efforts to change the electoral system at the national level under current conditions are not likely to bear fruit. The climate in British Columbia may be more favourable to a renewed effort in this regard.

Prince Edward Island

Concerns about FPTP elections arose in Prince Edward Island following the 2000 general election when the Conservative Party won 96.3% of the Legislature’s seats (26 out of 27) with 58% of the vote. The Legislature appointed the Commission on P.E.I.’s Electoral Future in 2004 to make recommendations. The Commission recommended “that, if supported by the electorate, the MMP electoral system be monitored and/or evaluated as experience using the system is gained.” The Commission further recommended that a “plebiscite be held on November 28th, 2005” on the following question:  “Should Prince Edward Island change to the Mixed Member Proportional System as presented by the Commission on P.E.I.’s Electoral Future?” The Commission recommended a threshold of 50%+1 for that plebiscite. The proposal was rejected with a decisive majority (63.58%) on November 28, 2005.

The subject was raised again a decade later. The Legislature’s Special Committee on Democratic Renewal submitted a report in November 2015 with 7 recommendations, including:

  2.    That electoral systems to be presented to the public for discussion will include the current first-past-the-post system with the addition of seats for leaders of political parties which receive a certain threshold in the popular vote; the preferential ballot as a method of selecting members of the Legislative Assembly; mixed member proportional representation; and dual-member mixed proportional representation. The current electoral systems used in Prince Edward Island will also be considered.

4.      That a clear question be presented to Islanders which will result in a clear expression of the will of the population of the province.

The plebiscite was held in late 2016. The five voting systems recommended by the Special Committee were listed on the ballot, and voters were asked to rank their preferences, 1 to indicate their first choice and 5 their least desirable one. FPTP held the leads in first preferences (31.22%), followed by MMP (29.04%). MMP gained support in every iteration. In the fourth and final iteration MMP exceeded the approval threshold with 52.42% (FPTP held 42.84%).

The vote did meet the government’s approval threshold, but the low voter turnout (36.5%) was deemed to fall short of the Committee’s recommended “clear expression of the will of the population of the province”. The vote was a plebiscite, but regrettably much of the media referred to the vote as a referendum thereby casting aspersions about the government’s motive for rejecting the outcome of the vote. The difference between a referendum and a plebiscite is critical: plebiscite specifically means a vote that is advisory or consultative, rather than legally binding on government.

British Columbia

British Columbia used the FPTP voting system when it joined Canada in 1871 as the sixth province. FPTP was both a convenient and a reasonable system at that time. Conditions began to change in 1898 when some candidates began to link their candidacy to political parties. Elections run on party lines have been the norm since the 20th century’s first election in 1903. All elections held from 1903 to 1941 resulted in majorities for either Conservatives or Liberals.

The political climate changed in the wake of the Second World War. Conservatives and Liberals had to form a coalition to secure legislative and executive powers as neither party gained a majority in the 1945 and 1949 general elections. Motivated by a concern about the possibility of the Co-operative Commonwealth Federation (CCF, forerunner to the NDP) gaining power, the Conservative-Liberal coalition replaced FPTP with the Alternative Vote (AV) system prior to the 1952 election. It was a strategic move adopted on the expectation that AV would return either Conservatives or Liberals to majority control in the Legislative Assembly.

AV was a success in the sense that it held the CCF at bay, but it failed to meet the coalition’s objective: a political novice, the Social Credit Party, came out of nowhere to claim 19 of the Legislature’s 48 seats, enough to form a minority government. Just one year later AV enabled Social Credit to elect 28 members, a comfortable majority. During its first majority term Social Credit ditched AV and restored FPTP. A significant change was enacted soon after with the addition of the candidate’s party affiliation to his or her name on ballots.

British Columbia’s 2001 general election produced a lopsided result (Liberals gained 97.5% of the seats with 57.62% of the vote) much as Prince Edward Island experienced the previous year. The government formed a Citizens’ Assembly on Electoral Reform (CA) to address the matter. The CA proposed the Single Transferable Vote (STV) system and recommended that the decision be made by referendum. The Legislative Assembly accepted the recommendation in a rare unanimous vote and set a dual threshold for the referendum’s approval: 60% of all ridings (48 of 79) and 60% of the overall vote. The referendum was held in conjunction with the 2005 general election. STV was endorsed in 97.47% of the province’s ridings (77 out of 79), but with only 57.69% of the overall vote it failed to reach the adoption threshold. The same proposal was voted on in a second referendum in 2009 and defeated by 60.91%.

Attempts “to minimize the level of distortion between the popular will of the electorate and the resultant seat allocations” over the past century in any Canadian jurisdiction have failed miserably. Where they have succeeded over the short term, as in British Columbia in the 1950s, that effort was not motivated by noble democratic ambitions; it was an attempt to prevent one political party from gaining access to legislative power.

British Columbia held two votes simultaneously in 2005: a referendum and a general election. The referendum was won with 42.31% of the vote, and the election was won with 45.8%. Our “governance ecosystem” ensured that the majority lost on both counts.

New Zealand

We could attempt to reform our electoral system yet again, ignoring the fact that our many attempts over generations have failed with such consistency as to be predictable. Another approach would be to pause and look beyond our borders for inspiration. We could learn a valuable lesson from New Zealand’s experience.

Both New Zealand and Canada inherited the FPTP system from the British Empire. FPTP inequities became a thorny subject in New Zealand politics as early as 1878. Repeated experiments with alternatives to FPTP over more than a century failed to resolve the matter to the satisfaction of New Zealanders. It was not until the 1990s that they devised a process that was equal to the challenge. New Zealand shifted the focus from proposing one alternative to FPTP to a gradual step-by-step process in which citizens were called on to make decisions by referendum at every step along the way.

The 2005 British Columbia referendum asked voters: Should British Columbia change to the BC-STV electoral system as recommended by the Citizens' Assembly on Electoral Reform?A majority said yes, but it did not meet the government’s condition for the vote to be binding. The 2009 referendum asked the same question, presenting it in an either/or format: Which electoral system should British Columbia use to elect members to the provincial Legislative Assembly?The single transferable vote electoral system (BC-STV), proposed by the Citizens’ Assembly on Electoral Reform / The existing electoral system (first-past-the-post). The 2005 ballot asked a yes/no question, the 2009 ballot asked a this-or-that question. Both questions represented the final step in a lengthy process that involved multiple interim decisions made by others: committees, commissions, boards, and the like.

New Zealand called on citizens to make every decision at every step in the process. The first referendum (1992) consisted of two parts. Part A offered a choice between two statements: I vote to retain the present First Past The Post system / I vote for a change to the electoral system. Part A did not offer an alternative to FPTP; it asked voters to declare their will: 84.72% voted for a change. Part B of that first referendum offered a number of alternatives: Mixed Member Proportional (MMP), single Transferable Vote (STV), Supplementary Member (SM), or Preferential Vote (PV). MMP was favoured by 64.95%, STV by 16%, PV by 6.04%, and SM by 5.12%.

Notwithstanding the strong support for abandoning FPTP and for adopting MMP, New Zealanders were asked to confirm their 1992 decisions in a second referendum in 1993. The format for the second referendum was identical to Part A in the 1992 referendum: I vote for the present First Past the Post system as provided by the Electoral Act 1956 / I vote for the proposed Mixed Member Proportional system as provided by the Electoral Act 1993. The 1992 referendum had triggered an intense public debate which is reflected in the result of the second referendum. Support for MMP narrowed to 53.86% while support for FPTP rose to 46.14%. Following that second referendum legislation was implemented to replace FPTP with MMP. However, the change in voting system did not conclude the process.

After four MMP elections (1996, 1999, 2002, 2005), each resulting in the need for two or more parties forming a coalition to form government, the government initiated a third referendum on electoral reform in conjunction with the 2011 election. As in 1992, this was a two-part referendum. Part A offered an either/or choice to voters: I vote to keep the MMP voting system / I vote to change to another voting system. 56.77% voted to keep MMP, 42.23% voted for a change. Part B restated the system options offered a generation ago in the 1992 referendum: 31.39% voted for FPTP, 8.34% for PV, 11.19% for STV, and 16.14% for SM.

It is interesting to note that STV which was offered to British Columbians in 2005 and 2009 was supported by a mere 16% when it was offered as one of several alternatives to New Zealanders in 1992. When STV was offered to them once again in 2011, one generation and four MMP elections later, support for STV dropped to 11.19%.

The lessons we can learn from New Zealand’s experience is that the process by which electoral system decisions are made should not and cannot be made in a single step: this or that, take it or leave it.

Conclusion

Three centuries ago John Locke reasoned that “The legislative power is that which has a right to direct how the force of the commonwealth shall be employed for preserving the community and the members of it.” (Two Treatises of Government 2.143). He cautioned that “it may be too great temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage”.

A person having the powers to both make and execute laws, that is the position in which our constitution places first ministers and their cabinet members. It is a position that made it possible for the Prime Minister to dismiss the 2016 Report of the Special Committee on Electoral Reform. John Locke was not clairvoyant, but he had a profound understanding of human nature. Canadian first ministers and their cabinet members are not evil people, they are human beings, and as such they are susceptible to “temptations to human frailty, apt to grasp at power”.

Locke concluded that “acting for the preservation of the community, there can be but one supreme power, which is the legislative” (2.149). Our Constitution recognizes that, but it also calls on the monarch to delegate executive powers, chiefly to persons elected to exercise legislative powers. Under these conditions, the absence of a clear separation of powers as Locke would have it, FPTP elections in a multi-faceted community not only subject the majority of society to the will of a minority, the system tends to intensify executive powers to the detriment of legislative powers.

The process by which voters elect their legislators is important. Elections are all we have to safeguard legislative superiority when the constitution de facto integrates executive and legislative power. Under such conditions the electoral process must ensure that the will of the people, in all its diversities and multitudes, is equitably represented in the legislature so as to leave it with the capacity to restrain the government’s executive powers. To quote Locke one more time: “the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject” (2.149). This statement speaks to the difference between the many attempts at electoral reform in Canada – designed and attempted by our legislators – to New Zealand’s community process.

Democracy is not about the efficiency, effectiveness, or efficacy of government decisions. Democracy is less about how decisions are made and more about how a community delegates decision-making powers. If decision-making powers are to rest with the legislative, as reasoned by John Locke, the process by which these powers are delegated by citizens to legislators must be designed so as to ensure that the members elected to the decision-making legislative represent the community’s gender, economic, cultural, geographic, and generational complexities – more succinctly put: the legislative must not only mirror, it must embrace society’s political diversity.

Democracy is not a default form of government and it is not self-sustaining. Apathy and complacency are infectious diseases. They have the capacity to overpower the fragile line that separates majority rule from mob rule. In her 2016 Massey Lectures The Return of History Prof. Jennifer Welsh gave examples of democracies, from around the world and over the last decade, that were diminished and repressed, subdued by autocratic elements engaged in cleverly orchestrated populism. Democracies with a constitution such as ours need an electoral process that will reduce the likelihood of one political party gaining full control of the legislative, and with that full control of the executive. That one political party can have all answers to all questions on all issues for all people is a tortuous definition for what is generally known as an autocracy. Democratic governance is ill-suited to ideological certainty. Democracy calls on political parties to negotiate and to compromise, to work toward consensus decisions with which few may fully satisfied, but which the majority is prepared to accept and live with.

Electoral reform at the national level may not be a likely probability in the near term, but at the provincial level our current “governance ecosystem” offers an opportunity. Britain’s “Brexit” referendum is a poor decision-making example; New Zealand offers a far superior lesson on how to structure a truly democratic electoral reform process.