Paul's Internet Landfill/ 2011/ First Past the Post on Trial

First-Past-the-Post on Trial

(I have been sitting on this entry since February, but will keep the original date I wrote it.)

I was being good. I was staying away from my old bad influences, burying myself in work, working as hard as I could to be apolitical and apathetic like all the other happy people. I was doing pretty well, too -- as you know, since 2007 I have never ever gotten involved with political things.

Alas. I fell off the wagon. I went to a webcast hosted by my old bad influences and learned about the latest Hail Mary attempt to win electoral reform in Canada. Despite losing referenda in Ontario, PEI and British Columbia (twice!), stalwart electoral reformers are turning to the legal system. In association with Fair Vote Canada and the Green Party of Canada, a group named l'Association pour la Revendication des Droits Démocratiques (The Association for the Advancement of Democratic Rights) in Quebec is suing the provincial government to declare First Past the Vote (FPTP) unconstitutional. Patrick Daoust and Brian Gibb, two of the plaintiffs in the case, talked with small groups of electoral reform zealots across the country.

There are two thrusts to their argument, both based on the Charter of Rights and Freedoms. The first argument is based on Section 3 of the charter, which states:

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

Their argument is that in addition to having the right to vote, the people of Canada should have the right to have that vote count for something, and that FPTP system FPTP systematically denies people voice in government. Any vote that is not cast for a winning candidate does not help anybody or any party get elected, which means that many people who cast ballots have no influence in shaping their governments. In particular it means that parties with geographically-dispersed support rarely or never get seats, which presumably is why the Greens are in this lawsuit.

I believe that the justification for throwing out FPTP has to do with the fact that this voting system has no way to aggregate preferences. Under FPTP you cannot rank candidates so that if your favourite candidate loses then your vote helps your second (or third, or fourth) choice get elected. Moreover, FPTP provides no mechanism for aggregating votes beyond ridings, which is why it is possible for parties that get a plurality of votes in an election to "lose" the their election. (See: BC in 1996, Quebec in 1998, and New Brunswick in 2006.)

The second argument comes from Section 15 of the Charter, which states that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I am fuzzier on this argument, but I think that the plaintiffs are arguing Section 15 violations on the basis of gender -- they are claiming that FPTP systemically discriminates against women representation in politics. Empirically, there is evidence that FPTP does a worse job of getting women elected than proportional voting systems -- this was one of the unsuccessful arguments used during the 2007 referendum.

During the video conference, the plaintiffs talked about Quebec's history of electoral reform. Unlike other provinces, Quebec did not have a referendum, but legislation to reform the electoral system was drafted and then scrapped. In addition, Quebec has problems keeping its ridings balanced for population, and has taken the weird step of suspending the Director of Elections. These shenanigans suggest that the people of Quebec have been systematically denied voting reform, and that FPTP is not working in the province.

The plaintiffs want FPTP declared "null and void", which means governments would have to find other voting systems to use. Nothing in this court case states that the replacements would need to be proportional (parallel voting and alternative ballot would presumably fit the bill).

The plaintiffs' strategy is to work this case up the legal system until it reaches the Supreme Court of Canada. On Tuesday, Feb 8 they submitted their final arguments to the Quebec Court of Appeals, and will hear the outcome in a few months.

This is not a new initiative. According to Patrick and Brian it has been in the works for a decade, and will likely drag on for at least another two years.

The plaintiffs are soliciting donations for their cause. I will probably give them some money, even though the initiative makes me feel skeezy. I am no fan of lawsuits or the legal system. It is not clear that there really is popular support for proportional voting systems: all four Canadian electoral reform referenda in the past decade have failed -- three by large margins. New Zealand -- the poster child for Mixed-Member Proportional voting during the 2007 Ontario referendum -- is under review, and will likely be dropped for a parallel (although not FPTP) voting system.

It is true that the UK is holding a referendum this May (May 5 2011, just a few days after our next Federal election), but it is also true that nobody in Canada knows or cares about this. (EDIT: It is also true that the referendum is for alternative ballot, which is not even a proportional system.) It seems to me that the zeitgeist for electoral reform in Canada has passed. Having FPTP declared unconstitutional would send shockwaves through the political system, and to many it would feel as if electoral reform was being forced down our throats. Such a decision could easily backfire.

So why give the plaintiffs money? For one thing, I am happy that somebody is continuing the good fight, even though I don't want to. I also do wish we had electoral reform. I wish I had worked harder in 2007, and I wish we had been smart enough to win. Certainly provincial politics would look a lot different with MMP after this year's election. Instead, we're going to get a "landslide" victory for the Conservatives with 40% of the vote, just like always.

It is clear to me that our voting system (and our political system in general) is pretty broken. Democracy may be the worst political system except for all the others, but that does not mean it is good enough.

Maybe this lawsuit is a waste of time and money, but it is no more so than running a campaign for an NDP or Green Party candidate in this town. The cost is similar, too -- the plaintiffs are looking for $40 000 to get to the Supreme Court, which is pretty close to what the NDP squandered in Kitchener-Waterloo for the 2007 election. (If that link goes dead: the NDP spent $47577.35 in expenses "subject to limitation" in 2007, and $55557.55 overall. This was much higher than any other party in the riding because the local NDP are fiscally savvy and good fundraisers, but my point stands.)

Another concern is that this lawsuit is frivolous. The legal system is expensive for society, so clogging up the system over obscure Charter challenges could be actively harmful. I am undecided about this. On the one hand, I am not sure I buy the legal arguments, but I do buy the underlying concept of the wasted vote. I think there is a real sense in which voters in this country are denied their democratic right to influence government. I don't know about the Section 15 challenge, but I think the Section 3 arguments of the Charter of Rights and Freedoms is pretty much right on the mark.

I don't plan to do more around this issue than give a little money and do a little blogging. I may not be able to stay on the wagon in the long term, but at least I can strive towards being apolitical and apathetic rather than political and pathetic. If you think this is a worthwhile cause, maybe you can contribute some money as well; I won't tell anybody.