We do not yet know the form or extent of the consultations on electoral system reform promised by the new Liberal government. A number of commentators have nevertheless – quite legitimately – begun to weigh in. Some of their observations, particularly on the desirability or even the need (under the constitution) for a referendum on a proposed reform, call for comment.
First, should any new electoral system be submitted to a national referendum prior to implementation? In my view, the answer is yes. Such a fundamental change to how we elect the country’s most important legislative institution should require majority support in a national vote. To take only one example, New Zealand held not one but two referendums (1990, 1993) before the country changed to a mixed member proportional (MMP) system in 1996. (Under MMP systems, a share of members are elected from party lists and the remainder by FPTP.)
Closer to home, during the period 2003-06, various bodies examined the electoral system in Ontario, Quebec, British Columbia, New Brunswick and Prince Edward Island. The most ambitious review, the British Columbia citizen’s assembly, recommended in 2004 that the single transferable vote (STV) replace the current first-past-the-post (FPTP) voting system. However, in the subsequent referendum, the reform, though supported by 57.4% of those voting, did not meet the 60% threshold set by the Gordon Campbell government.
In Prince Edward Island, a commission appointed by the legislative assembly recommended an MMP system. However, in the November 2005 referendum only 36.4% of voters endorsed the proposed reform. In Ontario, a citizen’s assembly recommended the province move to MMP, but it received only 36.9% approval in the November 2007 referendum.
There have been suggestions that one reason the federal government has ruled out a national referendum is that, based on this provincial experience, there is a bias towards the status quo. This cannot really be corroborated: people’s vote in all those cases would have been influenced by a number of factors, including cues from political leaders. New Zealand, which has a Westminster system similar to Canada’s (but with a unicameral parliament), rejected the status quo by popular vote. Finally, the BC example illustrates that, if a super-majority had not been required, that province probably would have dropped FPTP.
The desirability (or not) of holding a referendum on a proposed new electoral system should be assessed on the basis of principle of democratic consent, not on attempts to divine the eventual result based on a partial number of cases.
Is a national referendum on a reformed voting system constitutionally required? The answer to this seems fairly simple. Under section 44 of the 1982 Constitution Act, Parliament may, on its own, authorize amendments in relation to the House of Commons. This section has been used, for example, to implement new rules for the distribution of seats among the provinces (which entails amending section 51 of the 1867 Constitution Act). So long as the principle of proportionate representation of the provinces in the House of Commons were respected, it seems clear that a new electoral system could be authorized by Parliament without recourse to the general amending formula (at least seven provinces representing at least 50% of the country’s population).
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However, in an article published on the Globe and Mail website on January 15, 2016, Michael Pal of the University of Ottawa took issue with this assumption. He refers to a passage in the Supreme Court of Canada’s judgement in the 2004 Senate reference stating that amendments engaging provincial interests or fundamentally changing the “constitutional architecture” require provincial consent. In light of this, Pal writes that it is “an open question whether electoral reform can proceed without provincial consent.”
This seems to be clutching at straws. With regard to the point made above, no one has questioned Parliament’s authority to make changes to the distribution of House of Commons seats among provinces – hardly a minor electoral matter. Moreover, it is not clear how replacing FPTP would fundamentally change Canada’s “constitutional architecture.” The longstanding principle of election of MPs by the people would still be respected, as would the right to vote and to stand as a candidate protected by the Canadian Charter of Rights and Freedoms. Put another way, adopting a new voting system would be a change within our firmly entrenched constitutional architecture.
Finally, some clarification is needed on electoral system terminology. Some commentators use the term “preferential voting” without specifying whether they mean the alternative vote or STV. The first is used for the Australian House of Representatives in single-member districts. The prime goal is to ensure members are elected with a majority, not just a plurality, of votes. In contrast, STV, by which the Australian Senate and the lower house of the Irish parliament are elected, uses multi-member districts. It generally leads to results that are more proportional results than FPTP but less than occurs under a full proportional or mixed member system.
Debate on this important issue will become more fully engaged during the coming months. As it proceeds, it will be useful to look at electoral system reforms that have been instituted elsewhere and even exercises – such as the provincial ones mentioned above – that did not lead to change. It will also be important not to muddy the waters by drawing wrong or premature lessons.
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