Federal electoral Boundaries commissions 2002

Fair  Voting BC

November 8, 2002

The single-seat district system violates charter rights far more profoundly than any inequality of numbers between districts.

COMMISSIONERS

Honourable Mr. Justice Robert Hutchison

Mr. R. Kenneth CartyMs. Lynda Erickson

CONTENTS

Recommendations                                              2
Commission’s Mandate                                      2
First Principle:One person, One vote              3
Second Principle:Effective Representation     5
Practical Problems                                              6
Summary                                                              9
End Notes                                                            10
Appendix: About Fair Voting BC                      11

RECOMMENDATIONS

RECOMMENDATIONS

(1)             That future Electoral Boundaries Commissions be specifically mandated that their considerations be guided by both the Electoral Boundaries Readjustment Act and the Charter of Rights and Freedoms.

GROUNDS

The Charter of Rights and Freedoms guarantees Canadian citizens the right to vote in federal and provincial elections. This right has been interpreted by the Supreme Court of Canada in a manner that sets constitutional criteria for the drawing of electoral boundaries which are additional to the criteria presently contained in the Electoral Boundaries Readjustment Act.

Some boundaries commissions acknowledge the Charter of Rights and Freedoms as a guide, others do not.

(2)             That, the House of Commons place the matter of electoral reform before the citizens of Canada for public debate and a referendum much like the process that preceded New Zealand’s recent switch to a more democratic electoral system.

GROUNDS

Boundaries Commissions must meet two objectives – votes of equal worth (within certain limits, Electoral Boundaries Readjustment Act), and effective representation of minorities (Charter of Rights and Freedoms). Neither objective can be met by means of a single-seat district, electoral system.

The inequalities inherent in the voting system are so great, they trivialize the task of redrawing boundaries.

COMMISSION’S MANDATE

The commission’s mandate and enabling legislation does not occur in a complete legal, political, and constitutional vacuum. The full meaning of the commission’s instructions contained in Sec. 15 of the Electoral Boundaries Readjustment Act must be read within the context of court rulings aimed at understanding and protecting voter’s rights. In 1964, while the U.S. Supreme Court forced American states for the first time to address malapportionment, the Canadian Parliament brought in legislation creating independent electoral commissions, and the prohibition against deviations greater than 25 % of the provincial average quotient. The federal example of independent electoral boundaries commissions soon caught on among the provinces and a certain history developed about balancing the liberal, democratic ideal of one person, one vote, and the more conservative impulse to preserve fair representation for smaller, usually rural, communities of interest.

These practices became more formally entrenched following a number of court rulings defining more precisely the full meaning of the Charter-right to vote. These court rulings, particularly Carter v. Saskatchewan (A.G.), S.C.C. June 6, 1991, have a bearing on the mandate of any electoral boundaries commission.

Accordingly, the current federal Electoral Boundaries Commission of Nova Scotia states in its Proposed Report, “In conjunction with the provisions of the Act (Electoral Boundaries Readjustment Act), the Commission’s decisions must be guided by the Constitution Act, 1982, in particular the Canadian Charter of Rights and Freedoms, …” In addition, some provinces have amended their relevant legislation to mandate that provincial boundaries commissions be guided by the Charter of Rights and Freedoms. For example, Alberta’s legislation contains the following, “… the commission … must take into consideration the requirement for effective representation as guaranteed by the Canadian Charter of Rights and Freedoms.” Prince Edward Island has a similar provision and Nova Scotia includes minority representation. (Compendium of Election Administration in Canada, by Alain Pelletier, 1999, Elections Canada.)

Following Carter v. Saskatchewan academics and interested observers suggested that no electoral boundaries commission can ignore the court’s findings. R. E. Fritz, Associate Professor of Law at the University of Saskatchewan wrote:

In defining the Charter-protected right as requiring “effective representation,” the Court has mandated the consideration of such factors as community interest, rate of growth, special geographic features etc., where they are present. This has altered significantly the job of those who draw constituency boundaries in the future. Each constituency’s boundaries must be measured against those factors and failure to consider them will open the boundaries to challenge. Justice McLachlin’s comment related to giving deference to the conclusion, but only where the proper balancing of considerations is shown to have taken place. Those who are responsible for the drawing of the boundaries, be they commissioners, members of legislative committees, representatives of the governing party, or members of the bureaucracy, may find themselves being called to testify about how they carried out their task. Ideally the detailed reasons should be provided in any reports they produce. Failing that, prudence would suggest that such reasons should be available in records detailing their deliberations.1

And Andrew Sancton, Associate Professor of Political Science at the University of Western Ontario wrote:

The Court’s decision seems to have been written in such a way as to encourage extensive future litigation, or at least threats of such litigation directed at the hapless boundary-drawers. Numerous groups will inevitably want to argue that “effective representation” means boundaries must be drawn to take account of their particular concerns.2

As the commission fulfils its mandate it must take into consideration and be guided by the court’s decisions related to the meaning of Sec. 3 of the Charter of Rights and Freedoms. The burden of this submission is that the meaning of Sec. 3 as understood by the recent court decisions cannot be attained through single-seat constituencies.

FIRST PRINCIPLE, ONE PERSON, ONE VOTE

The principle of one person, one vote derives from liberal political theory according to which society consists of individuals whose equality and equal treatment before the law are of paramount importance. This view attaches less importance to communities of interest or group-rights. It is based on the premise that a modern democracy should treat all citizens equally. This principle is reflected in the various court rulings related to section 3 of the Charter of Rights and Freedoms which suggest that the ideal is for every MP to be elected by and to represent the same number of citizens, and that exceptions to this rule require justification.

Section 3 of the Charter of Rights and Freedoms reads:

Every citizen of Canada has the right to vote in an election to the House of Commons or of a legislative assembly, and to be qualified for membership therein.

Three cases, one heard by the Supreme Court of Canada, have elucidated the meaning of this section for electoral systems. British Columbia’s electoral boundaries legislation was the first to be tested against section 3 in what came to be known as the Dixon case. Chief Justice McLachlin of the BC Supreme Court, as she then was, delivered her judgment on April 18, 1989.3 The argument centred on the urban/rural split whereby some urban MLAs represented 15 times the population of the least populous rural riding under the then current BC legislation. This suggests that the vote of some was 15 times more powerful, than the vote of others. McLachlin observed:

The purpose (of the right to vote) cannot be less than to guarantee to citizens their full democratic rights in the government of the country and the provinces.

And,

…the right to vote and participate in the democratic election of one’s government is one of the most fundamental of the Charter rights.4

Such a fundamental right must not be diluted for some citizens by giving greater weight to the vote of others. Therefore, to ensure equality of voting power, representation must be by population in equal numbers. The electoral system must protect the equal worth of each citizen. Without equality of voting power, the popular will cannot be determined. The essence of democracy is that the people rule. Anything less than direct, representative democracy risks attenuating the expression of the popular will and hence risks thwarting the purpose of democracy.5

The court elaborated on why equality of voting power is so important. After observing that elected representatives have both a legislative and an ombudsman role, the court wrote:

In the legislative role, it is the majority of elected representatives who determine who forms the government and what laws are passed. In principle, the majority of elected representatives should represent the majority of the citizens entitled to vote. Otherwise, one runs the risk of rule by what is in fact a minority.6

Voting power means that a citizen’s vote should be capable of making a difference in determining who forms the government and what laws are passed. And in particular that this power should not be greater for some than for others.

Following the Dixon case, the Saskatchewan government referred its Electoral Boundaries Commission Act to the province’s Court of Appeal for an opinion on its constitutionality.7 The Court of Appeal interpreted section 3 to embody principles very similar to the Dixon case. One person – one vote, also means ‘a vote of equal worth’. To give full effect to this charter-right, electoral laws must “strive to make each citizen’s portion of sovereign power equal.” This will lead to ‘fair and effective representation’. In devising electoral boundaries the controlling and dominant principle is equality in the numbers of citizens each representative represents. By way of explanation, the court wrote:

This is so because most citizens can participate (in government) only as qualified voters through the election of legislators to represent them. …Voter’s rights merit constitutional safeguards in this way because the proportionate share of voting power enjoyed by each elected member of the Legislative Assembly. Any malapportionment with respect to voter population, and the subsequent dilution of a person’s vote, is reflected in the exercise of power in the legislature. The array of powers enjoyed by the legislature are exercised through the aforementioned voting scheme in our democracy. Since these powers touch the lives of each and every citizen in one way or another, the preservation and growth of our democratic process is not furthered by electoral practices which offend the worth of a person’s vote.8

The court held the legislation to contravene section 3. This was appealed to the Supreme Court of Canada, which delivered a decision on June 6, 1991, reversing the opinion of the Saskatchewan Court of Appeal.9 This ruling, known as the Carter case, did not eliminate votes of equal worth as the paramount guiding principle, but found that in addition to equality of voting power Section 3 also guarantees “the right to effective representation”. Mathematical equality between districts, even if it could be perfectly attained, may still not be fair in that boundaries could be drawn so as to give partisan advantage, or exclude from effective representation politically significant interests, such as, gender parity, the representation of First Nations, ethnic minorities, and political groups. Hence, the principle of effective representation must balance any unfairness strict adherence to the one person, one vote rule might engender. So, now there are two principles to guide boundaries commissions.

SECOND PRINCIPLE, EFFECTIVE REPRESENTATION

Canadian political history and culture is a mixture of both a liberal concern for individual rights and a conservative regard for the protection of community and diversity. This conservative respect for community, and the realism that representation necessarily applies to groups, since groups of voters elect representatives, individual voters do not, are both embodied in the concept of effective representation. John A. Macdonald said of the 1872 readjustment of constituency boundaries:

It will be found that, … while the principle of population was considered to a very great extent, other considerations were also held to have weight; so that different interests, classes and localities should be fairly represented, that the principle of number should not be the only one.10

The 1964 federal Electoral Boundaries Readjustment Act mandates boundaries commissions to be guided by the need to represent “communities of interest”. Mostly these considerations have been applied to justify smaller rural ridings. Carter, like previous cases held that smaller populations for rural ridings is justified since, “it is more difficult to represent rural ridings than urban”.11 That access to one’s representative is more difficult in rural ridings, is a concern familiar to every electoral boundaries commission. But recent court decisions go beyond the traditional concerns by broadening the scope of factors that fall within the concept of effective representation.

Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed.12(emphasis added)

If sparsely populated, remote areas are worthy of special consideration to ensure they will be represented effectively, then by this judgment so should ethnic, religious, economic, professional, gender, and perhaps many other interests, including partisan political interests. Analysts note that this places a burden before electoral boundaries commissions that goes beyond traditional concerns.

Fair and effective representation seems to require giving “deserving” groups or “communities of interest” (including but not limited to political parties) an appropriate degree of electoral influence. This goal can be undermined intentionally through explicit gerrymandering, or inadvertently through independent commissions paying too much attention to a standard of population equality.13

And the Alberta Court of Appeal following Carter wrote:

We foresee the possibility of minority claims for effective representation that, if accepted, might have an impact not just on the boundaries of specific districts but also on the total number of districts, the idea of single-seat constituencies, and the tradition of contiguous boundaries.14

PRACTICAL PROBLEMS

In drawing electoral boundaries the commission must be guided by two principles – votes of equal worth (within some limitations), and effective representation. Under single-seat districts neither principle can be attained. The single-seat district system is intentionally designed to not give equal power to all votes, and to not represent all parts of the public. With single-seat districts voting power and representation is only for those who vote for the winning candidate in each district, which is usually a minority of the voters. In practice, Canadians have the right to vote, but they do not have the right to have their vote count, nor do they have the right to be represented by the person or party of their choice.

For example, in 1993 the riding of New Westminster was won by less than 30% of the vote. The losing remnants that together make up 70% cannot be added to similar remnants in adjoining districts. Instead, the system discarded, or wasted 70% of the New Westminster votes. Such votes did not in anyway contribute to the outcome. Such voters are without power, and without representation. In this instance 70% of voters did not enjoy the benefits of either of the two charter-guaranteed voting rights. That 70% cast votes of no worth, and were denied representation of their choice.

Nor is this deprival of charter-rights restricted to the electors of New Westminster in 1993. In a typical election the majority of votes are for losing candidates. Such votes are wasted, in the sense that they have no effect on the outcome. Country-wide in 2000, 51.8% of the voters voted for losing candidates. The system of single-seat districts eliminated their choices. Their interests and political views are without representation in Parliament. The representation they do have is not of their choosing. Single-seat district electoral systems have an inherent democratic deficit.

It is imperative to recognize that inequality of voting power is not restricted to the variation in population between districts, and misrepresentation of communities of interest is due only marginally to where boundaries are drawn. Violation of both principles is an inherent feature of the single-seat district system. Given such constraints, the best boundaries commissions can do is hold both principles in an uneasy balance, leaving neither principle realized, and both largely frustrated. Today, after a number of Charter rulings which mandate electoral boundaries commissions to consider both principles, the dilemma all boundaries commissions face is that these two principles are unattainable, and irreconcilable given the constraints of single-seat constituencies. Boundaries commissions claim that their work will result in votes of equal worth, but the voting system renders such claims hollow.

It need not be this way. For example, adopting any proportional voting system such as multi-seat districts with preferential balloting, or the Mixed Member Proportional system Germany has used since 1949 and which New Zealand, Scotland and Wales recently adopted, will attain more fully both the principle that each MP is elected by and represents the same number of citizens, and the principle that each politically significant interest, or community is entitled to be represented effectively. The electoral system should facilitate the attainment of both principles. Why choose between them, or settle for their partial attainment when it is possible to remove the conflict and have both?

If we are to take the instructions of recent court rulings regarding the full meaning of Section 3 of the Charter of Rights and Freedoms seriously, we must design the mechanics of the electoral system such that the principles enunciated by the courts and the democratic ideals Canadians increasingly yearn for can be met and fully accommodated.

Given the constraints of single-seat districts the Commission faces two practical problems.

(i)      First, there is a conflict between the principle of votes of equal worth and the principle of fair and effective representation for all politically significant communities of interest. This commission like its predecessors, will be asked to increase the representation of the province’s densely populated and fast growing areas, while the northern districts will plead to maintain their few MPs. The first request appeals to the principle of equality of votes, the latter, to the principle of effective representation. Given the constraints of single-seat districts neither principle will be satisfied. The more the commission leans toward the first principle the greater the deviation from the second, and visa versa. But single-seat districts are not inevitable. Voting systems are human constructs, they should serve human ends.

In addition, the principle of votes of equal worth would be violated even if every district had the exact same population by number. Why? Because in each district the only votes that count, that have weight, that contribute to the result, are those cast for the winning candidate, and this is usually a minority. Votes for losing candidates are deprived of all weight, worth, influence, or power.

In Dixon the court wrote:

In principle, the majority of elected representatives should represent the majority of the citizens entitled to vote. Otherwise, one runs the risk of rule by what is in fact a minority.15

The court seems unaware that single-seat districts regularly, consistently, and by design produce majority governments from a minority of the votes. Compromise of the principle of voter equality is an inherent feature of the single-seat system, and is not restricted to the unequal populations of electoral districts.

The court correctly notes that the majority of MPs should be elected by a majority of voters, however, had the court drawn out the logical implication of its principle, the single-seat district system itself would have been judged to contravene section 3. Given our system, any exhortation that a majority of MPs should be elected by a majority of votes cast, is bereft of any possible practical meaning.

The basic flaw of the single-seat district voting system is that it cannot represent most voters, except in a two-party system. The system is intentionally designed to represent only some of the voters – those who vote for the winning candidate. All others – usually the majority – get no representation. Under single-seat district rules Canadians have the right to vote, but not the right to have their vote count, and hence no right to be represented, in spite of what the courts claim the charter promises.

(ii)      The second practical difficulty is that single-seat districts cannot be used to represent non-territorial interests, as noted by the Alberta Court of Appeal. The single-seat voting system is designed to represent the political interests that adhere to a particular geographic locality. This may have been adequate when citizens lives were largely enclosed within the confines of the local community and one’s place of residence. In the computer, information-highway age representation of territorially-based interests is increasingly of less significance. No doubt the citizens of the Peace River region have political interests that are different from those who live in West Vancouver, but what is the political significance of living on one side of Vancouver’s Kingsway as opposed to living on the other side?

So long as effective representation for “communities of interests” was limited to favouring geographically distinct areas, the single-seat district system was the appropriate mechanism, but single-seat districts cannot accommodate non-geographical political interests. For example, the under-representation of women, First Nations, adherents of smaller political parties such as the Progressive Conservative, NDP and Green parties, and ethnic minorities cannot be addressed. Organizations representing women’s interests have long abandoned the hope that single-seat districts can accommodate their concerns adequately.16 Today, more Canadians are joined in communities of interest not defined by where they live, but instead by what they think and believe about public policy issues.

Apart from our social mosaic even our political diversity cannot be fairly and effectively represented by single-seat districts. In the 1993 election, it took 1,093,211 votes to capture one Progressive Conservative seat, but only 31,730 votes for each Liberal seat. In that election, a Liberal vote was 34 times more powerful than a Progressive Conservative vote. Even for our traditional political diversity representation is neither fair nor effective.

The courts in recognizing that modern society has political interests other than the traditional territorial ones have mandated that citizen’s charter-guaranteed voting rights includes the effective representation of Canada’s social mosaic, yet the courts have failed to understand that such political interests cannot be represented within the restrictions of single-seat districts.

Where the courts have failed, parliament can succeed. However, parliament needs to be nudged. There is no incentive for the ruling Liberals to reform a system so advantageous to them. Asking the Liberals to change the voting system is akin to asking turkeys to vote for an early Thanksgiving.

The court’s failure to note that neither the principle of votes of equal worth nor the principle of effective representation for politically significant communities of interest can be accommodated within the single-seat district electoral system leaves electoral boundaries commissions to do a job with tools not designed to accomplish the job. In fact, the tools are biased against doing the job. With single-seat districts, effective representation can at best be made available to some voters, and be partially available to some territorially defined communities of interest at the expense of violating the one person, one vote rule, while the majority of voters, and non-geographical communities of interests cannot be accommodated at all. If there is a charter-right to votes of equal worth, and to fair and effective representation, single-seat districts must be abandoned.

SUMMARY

The right to vote means more than placing an X on a ballot. Canadians have charter-protected voting rights. The courts talk about votes of equal power and effectiveness, but wasting most votes is considered normal. We sent international observers around the world to monitor for electoral fairness, but forget that Canadian women and natives are among the world’s most under-represented. We quibble about whether the district boundary should be one block north or south of Kingsway, but ignore that most people’s political concerns today no longer relate to place and geography. The single-seat district system violates charter rights far more profoundly than any inequality of numbers between districts.

Former MP, author, and long-time commentator, Patrick Boyer, Q.C. writes:

Why battle over fairness about where the constituency boundaries are drawn… if simultaneously we employ such a blunt system for calculating voting out-comes that it trivializes and even mocks these other refinements in our democratic electoral system?17

END NOTES

1  &nbspR.E. Fritz, “The Saskatchewan Electoral Boundaries Case and Its Implications,” in Drawing Boundaries, by J.C. Courtney et al eds., (Saskatoon: Fifth House Publishers, 1992), p 85.

2   A. Sancton, “Commentary”, Ibid., p 93.

3   Dixon v. B.C. (A.G.), 91989) 4 W.W.R.

4   Ibid. p 404.

5   Ibid. p 406.

6   Ibid. pp 413-14.

7   Reference Re: Provincial Electoral Boundaries (1991) 3 W.W.R. (Saskatchewan Court of Appeal).

8   Ibid. p 609.

9   Reference Re Provincial Electoral Boundaries (1991) 5 W.W.R. p 1 (Supreme Court of Canada) McLachlin was elevated to the Supreme Court of Canada shortly after the Dixon case, and wrote the majority opinion, which Norman Ruff has dubbed McLachlin II. Courtney J.C. et al., eds. Drawing Boundaries, Saskatoon: Fifth House Publishers 1992, p 128.

10   Dixon v. B.C. (A.G.), (1989) 4 W.W.R. p 410.

11   Ibid. p 20.

12  &nbspIbid. pp 12-13.

13   R.Knopff, F.L. Morton, Charter Politics (Scarborough, Ont., Nelson Canada), p 361.

14   Reference Re: Electoral Boundaries Commission Act (1992) 1W.W.R., p 481 (Alberta Court of Appeal).

15   Ibid. pp 413-14.

16   Rule, W. “Electoral Systems, Contextual Factors and Women’s Opportunity for Election to Parliament in Twenty-Three Democracies,” Western Political Quarterly. Vol. 40, No 3 (1987).

17   Loenen, Nick. Citizenship and Democracy, Toronto: Dundurn Press, 1997, p 9.

APPENDIX

Fair Voting BC was incorporated April 2, 1998 as a non-profit, non-partisan citizens organization under the BC Society’s Act.

Its purposes are:

(1)     To serve as a catalyst for a programme of political and legislative reforms, with the objective of fostering a renewed political environment in the province.

(2)     To educate interested citizens about the democratic process and the responsibilities of citizenship.

In particular, Fair Voting BC aims to accomplish its purposes by advocating fair voting through a more proportional voting system.

                             BOARD OF DIRECTORS

JOHN VEGT, President
CHARTERED ACCOUNTANT

ROBERT RANSFORD, Vice-president
BUSINESSMAN

STUART PARKER, Secretary
CONSULTANT

PIETER ZEEMAN, Treasurer
BUSINESSMAN

PATRICK CONWAY
SYSTEMS ANALYST

KARIN ETHERIDGE
SOFTWARE ENGINEER

AARON JASPER
TOUR GUIDE

STEVE KISBY
COMPUTER TECHNICIAN

NICK LOENEN
FORMER MLA

DAVID MARLEY
LAWYER

ROWAN SHAW
STUDENT

DAVID SCHAUB
SOFTWARE DEVELOPER

JULIAN WEST
MATHEMATICIAN

              ADVISORY BOARD

GERRY ENSING
FORMER DEPUTY SUPERINTENDENT OF
INDEPENDENT SCHOOLS

DAVID SUZUKI
ENVIRONMENTALIST AND BROADCASTER

NORM LEVI
FORMER CABINET MINISTER

ANDRE MOLNAR
BUSINESSMAN

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