Introduction

My regular readers will know that I’m not a one-trick pony; at the very least, I’ve become a three-trick pony whose obsession oscillates from the constitutional conventions of Responsible Government – especially as they pertain to dissolution and prorogation – to the laws governing royal succession to the Crown of Canada, and to my latest hobbyhorse of the constitutional implications of electoral reform. (That said, I made my first foray into this subject back in 2011). What more could he possibly have to write about electoral reform? one might ask. First, I would remind you never to look a gifthorse in the mouth. Second, I’m pleased to say that I still had to type up my notes from the Canadian Study of Parliament Group’s (CSPG) Conference on Electoral Reform, which took place on Friday, 27 May 2016. I congratulate CSPG on having organized such an interesting and pertinent conference! I think that all who attended would agree that it was well worthwhile.

These notes are not exhaustive or complete; I wrote them by hand as the proceedings unfolded and typed them up two weeks later, and they reflect my bias in terms of my interest in and knowledge of the subjects on which the panellists presented. I was most interested in the fourth panel that covered the constitutional implications of electoral reform. For the most part, they recount my observations of what happened, though I couldn’t resist opining and interjecting on the fourth panel and in my conclusion. For my full arguments on the constitutional implications of electoral reform, please see my previous entry, “Jean-Pierre Kingsley Is Wrong: Electoral Reform Is A Constitutional Matter.”

Panel 1: “The History of Canadian Electoral Systems and Reform”

The first panel consisted of presentations on the history of electoral reform and the history of provincial electoral systems in Canada. Indeed, pure single-member plurality has not always enjoyed such electoral hegemony in this country; many of the provinces (particularly in the West and in the Maritimes) once used different electoral systems. The current debates on electoral reform often ignore these historical cases.

Professor Dennis Pilon, Professor of Political Science at York University and an expert on mixed-member proportional representation (MMP) in particular, gave a very interesting presentation on the history of electoral reform at the federal level. I especially enjoyed his rendition of Mackenzie King’s mendacity on electoral reform, which I hadn’t heard before. (Though I am of course familiar with King’s Machiavellian skullduggery and his amorphous all-things-to-all-people political persona in general.) In a classic Mackenzie King move, he promised in the general election of 1935 that a Liberal government would implement electoral reform; in reality, of course, he never had any intention of following through on this pledge and only said so in order to cut into the support of the Co-operative Commonwealth Federation (CCF, the ancestor party of the NDP) and the remnant of the Progressive Party, which had broken off from the Liberals in the election of 1921. Both of these Western populist formations had advocated proportional representation. After the Liberals won a parliamentary majority in the general election of 1935, King cleverly deferred the issue by adopting his favourite tactic: manufacturing plausible deniability by way of a special parliamentary committee. (This is all starting to sound so eerily familiar…) This entity studied the issue for a year or two and ended up recommending that parliament keep single-member plurality, which gave King the political cover to reject proportional representation and rescind his promise from the previous campaign.

We could therefore conclude that King applied a variation of his infamous maxim (first stated with respect to conscription) to the subject of electoral reform as well: electoral reform if necessary, but not necessarily electoral reform. Even the generic phrase that we Canadian politicos associate with King today is just as variable and ever-shifting as King himself was in life.

Pilon concluded that if today’s Liberals are feeling confident, they will do precisely what King did in the 1930s and just keep single-member plurality but that if they feel too much pressure, they will opt for instant run-off balloting, also known as alternative vote (AV) – which is single-member majority and not a proportional system.

Harold Jansen, Professor of Political Science at the University of Lethbridge, presented on the history of electoral systems in the Western Provinces – a fascinating and little-understood topic, particularly in Central Canada. Essentially, British Columbians, Albertans, and Manitobans at various points between the 1920s and 1960s used to elect MPs under STV or AV. In Manitoba and Alberta, the Progressives and United Farmers – both part of a broader agrarian populist movement – championed electoral reform during the 1920s and succeeded in displacing the Liberals in those provinces; however, in Saskatchewan, the Liberals managed to stave off and co-opt the Progressives. The CCF then gained prominence there in the 1930s but lost interest in electoral reform after becoming successful under Tommy Douglas’s leadership. Electoral reform came later to British Columbia for more overtly tactical partisan reasons.

In Manitoba, the Progressives introduced a bifurcated electoral system that included both STV and AV. In the city of Winnipeg, MPs were elected under STV, and the whole city served as the multi-member electoral district. In the rural areas, AV prevailed because STV would have forced large rural ridings to become even larger, which would have been impractical. In later years, the city of Winnipeg was divided into more electoral districts. (It was three, I believe). The United Farmers of Alberta (UFA) copied Manitoba’s system wholesale; in Alberta, the cities of Calgary and Edmonton fell under STV, and the rest of the province was subject to AV. This bifurcated system died out in Manitoba by the 1960s, and Ernest Manning’s Social Creditists abolished it in Alberta in 1956.

In British Columbia, the provincial Liberals and Conservatives had formed a coalition government during the Second World War and continued working together in the late 1940s and early 1950s. They decided that Australian-style instant run-off balloting (AV) would serve their interests and prevent the CCF from gaining ground; the Liberals and Conservatives figured that their voters would choose the other party as their second preference on the ranked ballot. But this self-interested decision to replace SMP with AV proved the undoing of both parties, as Liberals and Conservatives alike selected the Social Creditists as their second choice! In 1952, the Social Creditists won a plurality and formed a single-party minority government; in 1953, they won a parliamentary majority and promptly abolished AV and reinstated SMP. The BC Conservatives vanished into obscurity, and the BC Liberals did not replace Social Credit as the main right-wing political party until the 1990s.

Jensen also made some other interesting observations about electoral reform in Canada. He argued that social movements, and not the electoral system itself, are what influence the number of political parties present in any given polity; he demonstrated that the Progressive Movement emerged first and that electoral reform came after in Manitoba and Alberta. Jensen also noted that switching to the bifurcated STV-AV model in Manitoba and Alberta had no effect whatsoever on voter turnout, but that both STV and AV led to an increase in the number of rejected ballots. Based on his study of AV in Manitoba and Alberta, he concluded that adopting AV at the federal level would make little difference and that we tend to over-estimate its effects, because many voters decide to mark only a “1” on the ballot and reject all the other candidates.

I would also note that the Atlantic Provinces retained unorthodox electoral systems well into the 20th century. Until 1975, the electoral districts of Newfoundland and Labrador were drawn based on religion, with Anglicans, Roman Catholics, and adherents of the United Church represented equally.[1] Even after consulting those two sources, I’m still not sure whether these were single-member districts gerrymandered in such a way that their boundaries adhered to neighbours and communities traditionally understood to be, variously, Catholic, Anglican, and United Church, or, alternatively, whether they were three-member districts in which each party nominated one candidate of each confession. But the point is that Newfoundland and Labrador did not adopt orthodox SMP until comparatively recently. (On 13 June 2016, I contacted Rand Dyck, who wrote one of those sources, and he told me that the former is correct; Newfoundland and Labrador’s electoral districts demonstrated what he and I decided to call “confessional gerrymandering” such that the boundaries were drawn to capture Catholic, Anglican, and United Church communities, but they were not multi-member districts).

A similar confessional arrangement once prevailed in Prince Edward Island. From 1893 to 1997, Prince Edward Island operated on dual-member constituencies in its provincial elections, which normally meant that each party would nominate one Roman Catholic and one Protestant per riding.[2] In addition, Nova Scotia’s provincial legislative assembly included two-member electoral districts — also to accommodate confessional representation — and, in some cases, multi-member districts that returned three, four, or five members each; by 1933, the province had eliminated its multi-member districts, but the dual-member electoral districts persisted until 1981.[3] New Brunswick (once part of Nova Scotia) seems to have inherited its predecessor Crown colony’s electoral system: until 1974, the Picture Province also operated under dual-member or multi-member constituencies.[4]

Panel 2: “Electoral Reform – The Different Models”

Louis Massicotte, Professor of Political Science at Laval University, presented on the role of party-list MPs under MMP. In particular, he compared how MMP works in Germany’s federal parliament to how it operates in Wales’s devolved regional assembly.

The former West Germany, and its successor state, the current Federal Republic of Germany, have used MMP since 1949. The German model of MMP allows “double candidacy,” whereby candidates can run for both a geographic electoral district and for the party-list compensatory seats. In practice, the two types of MPs are treated equally in the Bundestag, and the constituency MPs are not regarded as holding a monopoly on representing geographic constituencies. This is because section 38 of Germany’s Basic Law stipulates that MPs “shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.” Massicotte noted that, overall, Germany’s political culture is based on consensus and co-operation rather than the adversarial politics of Westminster systems.

MMP has played out differently in Wales. The devolved Welsh assembly (created by an act of the Westminster Parliament in 1998) consists of 40 geographic seats and 20 compensatory seats for a total of 60. Since 1998, the Labour Party has won the majority of the geographic constituencies in every election. However, the adversarial British political culture did not suit MMP; Labour also won parliamentary majorities and treated list-MPs with contempt and as lesser creatures, especially because most of them sat on the opposition benches anyway. Wales has oscillated between allowing and disallowing dual candidacy. As of 2016, Welsh electoral law permits dual candidacy, which is generally regarded as a stabilizing force in MMP systems.

Massicotte concluded that the pre-existing political culture greatly affects how MMP works in practice and acknowledged that Canada’s traditions of adversarialism would run up against MMP.

Christopher Kam, Professor of Political Science at the University of British Columbia, presented on representation and accountability in electoral systems. Drawing on the work of American political scientist Bingham Powell, Kam noted that we cannot reliably identify the representativeness of any given electoral system and that accountability in an electoral system depends chiefly on two factors: the clarity of responsibility, and the capacity of voters to sanction the government. Kam noted that since proportional systems normally produce coalition governments, they thereby also reduce the clarity of responsibility, which in turn makes sanctioning the government far more difficult for voters. Generally, every electoral system produces a trade off between accountability on the one hand and representativeness on the other. Based on his interpretation of Social Choice Theory, Kam concluded that it is impossible to identify a transitive social choice and that, essentially, there is no popular will. During the question and answer session, this touched off what I described on Twitter that morning as an epic nerdfight between Kam and Pilon as they clashed over varying interpretations of Social Choice Theory. Admittedly, this is outside of my area of expertise, so my notes don’t really do Kam’s presentation justice.

Panel 3: “Electoral Reform – Lessons and Experiences from Elsewhere”

Lawrence Leduc, Professor Emeritus of Political Science at the University of Toronto, presented on two successful electoral reform strategies, one in Japan, and the other in New Zealand.

Leduc noted that electoral reform is very difficult to achieve and that parties in opposition tend to support it most strongly. When electoral reform moves from theory to practice, it becomes a high-stakes struggle for power, he said.

New Zealand conducted its first general election under MMP in 1996, but the impetus for electoral reform there stretches back to the late 1970s. The long road to MMP was paved with a royal commission, a special parliamentary committee, self-interested about-faces by both main political parties, and two ratifying referendums. In 1978 and 1981, Labour won the popular vote but won fewer seats than the Nationals. Around this time, support for third parties – particularly Social Credit – was increasing, which reduced the winning party’s plurality of the popular vote yet further. However, Labour did go on to win parliamentary majorities in the elections of 1984 and 1987; coincidentally, Labour’s enthusiasm for electoral reform began to diminish around this time. In 1984, Labour Prime Minister David Lange then pulled a Mackenzie King and struck up a royal commission on electoral reform, which studied the issue for two years and ultimately recommended in 1986 that New Zealand switch to MMP. Labour then assiduously ignored the report. After securing re-election in 1987, Labour forwarded the issue to a parliamentary committee, which further studied electoral reform until 1989 but recommended something other than MMP. If Lange had held a séance with Mackenzie King, the wily Canadian PM would have been very proud indeed! In 1990, Jim Bolger led the Nationals (the main right-wing formation in New Zealand) to a parliamentary majority and held the first referendum on MMP in 1991 – in which fully 84% of Kiwis voted in favour of electoral reform, with 70.5% supporting MMP in particular. This caught the Nationals off guard, since they had sought to kill any reform effort through this referendum. According to Leduc, New Zealanders supported electoral reform so overwhelmingly because they had become so fed up with the antics of both Labour and the Nationals, each of which had championed electoral reform while in opposition only to defer it and study it to death in government without implementing anything. Amazingly, the Bolger government refused to enact MMP until after holding a second referendum on the issue in 1993, in which a reduced, but still very clear, majority of 53.9% voted in favour of MMP. Finally, Prime Minister John Key’s Nationals held a third retrospective referendum in 2011 that allowed New Zealanders to evaluate MMP; 57% supported it.

In its post-war constitution, Japan adopted NSTV, or non-single transferable vote, which consists of multi-member electoral districts without ensuring a proportional outcome. Japan soon after became a de facto one-party state under the Liberal-Democratic Party (LPD). Leduc identified these four factors as having contributed to support for electoral reform in Japana:

One-party dominance Factionalism within the LDP (de facto parties within parties) Corruption Distorted representation

(As a sidenote, I can’t help but observe that factors 1 and 2 in particular are reminiscent of Alberta’s provincial politics pre-2015, in which the real battle occurred not between the parties in government and opposition, but instead within the governing party. Such systems offer little accountability and are prone to sudden collapse).

The LDP did not lose its overall post-war majority in the lower house until 1993. At that point, the opposition – in a coalition of 7 parties that agreed on little except the necessity of electoral reform – came to power mid-parliament and cobbled together a policy on electoral reform in an effort to prevent the LDP from re-establishing one-party rule. They settled on a parallel system, which is essentially a non-proportional version of MMP. Voters cast ballots for a candidates representing both geographic constituencies and the political parties themselves, but there is no formula (like the Droop Quota or O’Hare Quota) that ensures an overall proportional outcome. It seems that the Japanese like adopting non-proportional variants of electoral systems that were originally designed to be proportional!

However, the LPD soon won another parliamentary majority under the new system anyway. An LPD government then used its majority to alter the voting system in the later 1990s and alter the balance between constituency seats and party seats in favour of the former.

Leduc concluded that electoral reform poses such difficulties because of entrenched interests, intra-partisan division, lack of defined process, public indifference, multiple veto points, and disinformation. Most of these factors would seem to pertain to the current debate in Canada, too – especially the disagreement over process.

Panel 4: “Path to Electoral Reform, Referendum, and Constitutional Amendment”

The fourth panel consisted of Dennis Pilon; Emmett Macfarlane, Professor of Political Science at the University of Waterloo; Benoit Pelletier, Professor Law at the University of Ottawa, and; Craig Scott, former NDP MP and Professor of Law at Osgood.

Macfarlane stated that while the amending formula says little on the electoral system, sections 51 and 52 implicitly refer to it. He also concluded that switching to a proportional system like MMP or STV would require an amendment to section 51(1) of the Constitution Act, 1867 pursuant to the amending formula in section 44 of the Constitution Act, 1982. Much to my surprise and disappointment, he was the only panellist who recognized and affirmed the obvious fact that electoral reform pertains to the Constitution Acts and that a proportional system could only be implemented through some kind of constitutional amendment. He also touched on the implications of the Senate Reference from 2014 and the Supreme Court’s doctrine on “constitutional architecture,” which builds upon concepts acknowledged in the Patriation Reference and the Secession Reference, including the fact that the Constitution of Canada consists of both codified and uncodified elements. In the Senate Reference, the SCC went as far as to conclude that an attempt to alter these uncodified elements would also engage the constitutional amending formulas in Part V of the Constitution Act, 1982. Ultimately, Macfarlane rejected the Constitutional Architecture Argument in the case of electoral reform on the grounds that the electoral system does not directly engage provincial interests and because the House of Commons represents the country as a whole and not the provinces. This is significant because if the SCC’s Constitutional Architecture Doctrine were applied to reforming the electoral system of the House of Commons, then switching to any electoral system would probably be subject to the General Amending Formula under sections 38 or 42 rather than the Parliament-of-Canada-alone formula under section 44. However, Macfarlane did note that a system of MMP that allowed compensatory party seats to cross provincial boundaries would be ultra vires of section 52 of the Constitution Act, 1867 because it would “disturb” the “proportionate representation of the provinces.” Macfarlane has since written on his views in Policy Options in an article entitled, “Electoral Reform and the Law.”

(Also, just to make this absolutely clear, my short article on the constitutional implications of electoral reform that appears in the Macdonald-Laurier Institute’s Inside Policy and the arguments contained therein are an abridged version of a manuscript that I submitted to another journal on 11 May 2016, before this conference. Macfarlane and I are like Newton and Leibniz here; when smart people look at the same evidence, they tend to draw similar conclusions).

Craig Scott commented primarily on the Trudeau government’s strategy on electoral reform. He noted that civil society movements have emerged in favour of holding a referendum and on switching to MMP. He also observed that the Liberals have employed phrases like “make every vote count” – wording normally associated with proponents of MMP – even though they are known to favour AV. Scott believes that the Liberals are deliberately delaying any action on electoral reform because any delay supports either the status quo or AV and prevents MMP or STV from being implemented. In particular, he highlighted Trudeau II’s bizarre statement from 4 May 2016, in which he accused the opposition of obstructing electoral reform, even though the special committee on electoral reform had been yet been established, and even though none of the opposition parties had yet been consulted. Trudeau II said:

As you may have gathered, there is one party who is insistent that there needs to be a referendum, and they’re laying that out as a ground rule. Another party has a particular perspective on the outcome that they’re very attached to. We’re in discussions with the other parties about how to set up that committee.

Scott hypothesized that Trudeau II had simply jumped the gun on the talking points that the Liberals had planned to roll out after the committee had started its work. Scott Reid, Conservative MP and Shadow Minister for Democratic Institutions, also believes that the Trudeau government is pulling a Mackenzie King and delaying electoral reform as long as possible so that only AV could be implemented in time for 2019, as he explained in his column in the Ottawa Citizen.

Pelletier spoke on Figueroa v Canada and argued that SMP is constitutional. In other words, Pelletier devoted a large portion of his presentation to the tautology that the constitution cannot be unconstitutional and that one part of the constitution cannot be invoked to invalidate another part of the constitution. In an amusing coincidence, “Shit Academics Say” posted a cartoon about “The Tautology Club” the very next morning on Facebook. Yes, indeed, section 3 of the Charter cannot be invoked in order to invalidate single-member plurality as an electoral system, which is contained in section 51(1) of the Constitution Act, 1867. More worrying still, Pelletier did not even know that he was making a tautology, because he did not accept that electoral reform is a constitutional matter. He insisted that switching to MMP or STV would not require any constitutional amendment at all and maintained that a constitutional amendment would only be required if electoral reform affected the principles of Responsible Government or the Office of the Queen – which means that Pelletier was suggesting that electoral reform could potentially engage the unanimity constitutional amending formula under section 41. Given Pelletier’s views on royal succession, I also had to suppress an audible chuckle toward his reference to the Office of the Queen. Frankly, invoking section 41(a) over electoral reform is a red herring, especially when you interpret “the office of the queen” and “the office of the governor general” as Pelletier and Newman do, which is that “office” includes the powers and authorities of the Queen. This is because changing the electoral system would not alter the Crown’s authority over forming governments, even if this authority would have be invoked more frequently.

In his second presentation at the conference, Pilon said that electoral reform “is all about politics”, not principles or values. I concur, since each political party not-so-coincidentally supports the electoral system from which it would derive the most benefit. However, Pilon kept insisting that we could implement MMP or STV without any constitutional amendment at all, notwithstanding section 51(1) of the Constitution Act, 1867. Interestingly, he suggested that there wouldn’t even be much point to adopting the German model of MMP in which each province would form the basis for calculating the popular votes of the political parties so that compensatory seats remain within each province. But adopting a form of MMP in which compensatory seats cross provincial boundaries would be ultra vires of section 52 of the Constitution Act, 1867, so only a constitutional amendment to that section promulgated pursuant to the General Amending Formula could allow for such a system in which the compensatory party-list seats disturbed the principle of the proportionate representation of the provinces.

Conclusion

Probably because the fourth panel concluded the conference on the topic in which I was always most interested, I drew the self-serving conclusion that Emmett Macfarlane and I were apparently the only people in the country who understand the significance of section 51(1) of the Constitution Act, 1867 and why switching to any proportional system would require some kind of constitutional amendment. This blog entry comes as an anti-climatic follow up to my article in the Macdonald-Laurier Institute’s Inside Policy magazine; it was my attending this conference that motivated me to write “Time Has Run Out on Electoral Reform“, if only to correct the factual errors on the constitutional implications of electoral reform that abounded in that last panel.

Apart from that, I did enjoy the first panel on the history of electoral systems and the changes that various provinces had undertaken in the early to mid-20th century.‎ Pilon in particular refuted some of the very bad arguments that supporters of SMP have made over the years. As he pointed out, the first recital of the preamble of the Constitution Act, 1867 (“a constitution similar in principle to that of the United Kingdom”) could in no way be construed as a constitutional entrenchment of SMP, if only because the United Kingdom did not adopt SMP broadly until the Representation of the People Act, 1884. (And even then, deviations from pure SMP, like seats for universities, persisted well into the 20th century). He also noted that SMP emerged and evolved before Responsible Government, universal adult suffrage, and the establishment of a neutral electoral commission that prevented gerrymandering of electoral districts. This is, of course, correct. But SMP has also defied teleological arguments about the inevitability of electoral reform: in Western Canada and Atlantic Canada, electoral reform has meant switching to SMP and away from multi-member districts.

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[1] Rand Dyck, Provincial Politics in Canada: Towards the Turn of the Century, 3rd Edition (Scarborough, Ontario: Prentice Hall Canada), 51; Luke Flanagan and Alex Marland, “Newfoundland and Labrador,” Chapter 1 in Big Worlds: Politics and Elections in the Canadian Provinces and Territories, edited by Jared W. Wesley (Toronto: University of Toronto Press, 2016), 10.

[2] Dyck 1996, 96.

[3] Dyck 1996, 135.

[4] Dyck 1996, 180.