the court challenge of FPTP conducted by Springtide and Fair Vote BC was struck down by a judge in 2023, but that ruling is to be appealed in late 2024.
the Appeal Court for Ontario has announced a tentative date for hearing the appeal in the Charter Challenge - it's currently booked for this fall, on Tuesday, November 5th in Toronto.
FPTP so obviously gives more value to some votes than to others that it is difficult to see how it can be sustained over our Bill of Rights.
Fingers crossed
Successful appeal would give governments a while to choose a new system -- not necessarily any one system but something that would be fair than FPTP.
There are variety of alternatives out there
- any system with at-large districting or multi-member districts and each voter having one vote, either cast for candidate or party, would be improvement over FPTP.
Such is done crudely by SNTV.
a system that is quota based and uses transferable votes has hgh degree of fairness and high degree of effective votes -- votes actually used to elect someone. such is STV.
But party list PR is other possibility.
MMP -- mash-up of FPTP and list PR -- is also a possibility.
====================
The challengers' factum is a treasure-trove of pertinent critiques of FPTP and an endorsement of PR, in partlcuar the kind of PR systems that might be brought in in Canada.
here's the link to factum online:
The available forms of PR include STV, list PR or MMP, each using districts or pooling of seats that will be no larger than a province.
That way each province will maintain its due number of seats as constitutionally guaranteed. But with fair voting within each province or within districfs that do not extend beyond a province's borders, each voter will have a vote that in most cases will actually be counted to elect someone - not the case under FPTP -
and most voters will have an MP in their district whose sentiments reflect the sentiment of the voter - again not the case in FPTP often, when as few as 23 percent of the votes cast or fewer actually elect the district member.
There are so many great bits in the factum of the appeal of the judge's ruling on the Court Challenge.
The appeal seems very strong indeed as it is clear that the judge did not base his ruling on true understanding of the weakness of SMP, the benefits of PR, and the ease with which Canada could adopt PR of some sort.
I particularly like items 10 to 14, which rebuts how Morgan J said the election system that we use should be derived by trade-off of principles, each of which he said was just as strong as any other, and with no consideration of how PR does many of the things credited to SMP and does them better. Thus a switch to PR will lose us little and gain us much.
10. The Judge found that the choice between a PR system and SMP involves a trade-off in values.
PR privileges
(i) the fair and even representation of voters;
(ii) the democratic satisfaction of voters; and
(iii) electoral turnout.
SMP privileges
(i) “political effectiveness”; and
(ii) the promotion of regional interests.
...
12. First, the [Report of the Special Committee of the House of Commons on Electoral Reform] did not observe that SMP serves “otherwise neglected democratic goals” such as the protection of regional interests, political moderation, and the promotion of stable, responsive, and accountable government (and the Judge’s references to pages 7-14 and 16 of the Report fail to support his claim).
In fact, the Committee expressly recognized that the PR systems best suited to Canada – such as MMP, STV, and “moderate” variants of list PR with provinces divided into regions of [relatively] low district magnitude – would readily protect “regional interests” and “strong, accountable local representation” ...
[The judge's] interpretation mischaracterizes the Committee’s Report, which signalled that there are numerous PR options for Canada that would uphold the values of local and regional representation and stable government while also enabling the House to accurately represent the will of voters (contrary to SMP), both at the riding level and in terms of overall vote share.
[Representing the will of the voter at the district level is directly related to the production of a high rate of "effective" votes. This is accomplished in part by election of multiple members in the district.
Canada's relatively-low DM can mean as much as ten or so members elected in a district. Such DM is only considered low when compared to list PR's DM of 30 to 50 or more. It is actually fairly high and fair, with any candidate (or party) that gets ten percent of the vote being elected, or at least the ten most-popular candidates being elected.
Winnipeg elected ten at a time as early as 1920. Even with "low-DM districts" and with respect for local representation, there is no neccessity to have DM of only 3 to 5 at all. Many cities in Canada elect five or more MPs. If the city's sports team is considered "local", then a district covering a whole city can be considered local and each member therein is a local member.]
13. Second, while true that the Committee recognized the need to represent regional diversity in Parliament, the Committee in fact cited the failure to represent regional diversity as one of the central deficiencies of Canada’s SMP. This is because of the “well known” tendency for SMP to create vast “regional deserts”, where “whole regions of Canada may have little or no representation in the [G]overnment”. [caused by seats of a region being artificially swept by candidates of an opposition party] ...
14. Third, not all values are created equal. The Committee noted that Canada’s SMP has three perceived strengths.
It:
(i) “focuses on local representation” (though, as noted, the PR systems considered for Canada would all preserve local representation);
(ii) is “efficient and simple”; and
(iii) is “more likely to produce majority governments”.
In contrast, [SMP] has the following perceived weaknesses:
(i) SMP “fails to accurately represent the will of voters, both at the riding level and in terms of overall vote share in the House of Commons”, a deficiency that disenfranchises the majority of voters who vote for candidates who do not win their seat and negatively impacts the legitimacy of Parliament;
(ii) SMP discourages citizens from voting, leading to voter apathy, dissatisfaction, and lower voter turnout;
(iii) SMP makes it “far more difficult” to elect women, Indigenous people, and minorities to the House of Commons; and
(iv) SMP produces defective governance, including
-minority rule (because “the majority party often receives much less than a majority of the votes”),
-“policy lurch” (which occurs where new governments abruptly and substantially shift policies following an election, despite winning less than 50 percent of the popular vote), and
-a failure to properly represent regions.
..
ISSUE 1: The Application Judge erred in dismissing the s. 3 claims 1.
The Application Judge adopted an overly narrow interpretation of s. 3 40. According to the Judge, s. 3 of the Charter protects only “the right to participate in an election and to have a representative of your riding in Parliament”. It is fulfilled with the simple “possibility that each elector can exercise his right to vote periodically, freely, and secretly, be a candidate for office, vote for the party of his choice, and express himself in public”
41. This largely symbolic interpretation is unduly narrow and conflicts with the Supreme Court’s “generous” and functional interpretation of s. 3, as outlined in its jurisprudence. In addition to “the bare right to place a ballot in a box” and to run for office, the Court has stated that s. 3 protects
(i) the right to “meaningful participation”; and
(ii) the right to “effective representation”.
These underlying rights are each concerned with a critical facet of democratic participation and governance
42. The right to meaningful participation provides that each citizen must have a “genuine opportunity” to take part in the governance of the country through participation in the selection of elected representatives. This right allows citizens to meaningfully participate throughout the electoral process in a manner that accurately reflects their preferences, by voting for, working for, volunteering for, canvassing for, advocating for, donating to, and supporting candidates or even by running in the election themselves. The right to meaningful participation has an “intrinsic value independent of its impact upon the actual outcome of elections.”
...
44. The right to effective representation goes beyond participation.
It is the right of each citizen to be “represented in government”, not merely in symbolic terms through a representative elected in their riding, but rather through an MP who “function[s]” in two roles – the legislative and the ombudsman roles. The legislative function provides citizens with a “voice in the deliberations of government” and is the most important function to voters, who cast votes largely according to “issue and policy positions associated with parties”. The other function, the “ombudsman” role, addresses the constituency grievances and concerns of voters.
...
[46] ...
John Stuart Mill explained: “the basis of a democracy is that each citizen stands in a position of equality not just with respect to their right to vote, but also when it comes to having their voice heard and their positions considered.” [this remark might be from his 1861 book Representative government in which he made one of the first published defences of Pro-rep.]
...
74. Ultimately, the Court should confirm that political affiliation or support is an analogous ground. The government has no legitimate interest in expecting Green Party or PPC voters to vote differently if they want to be proportionally represented. SMP discriminates against these voters and candidates by reducing the value of their votes and voices, further marginalizing them.
...
1. The Application Judge adopted an overly narrow interpretation of s. 3
2. SMP violates the s. 3 right of voters to “meaningful participation”
3. SMP violates the s. 3 right of voters to “effective representation”
51. First, SMP breaches the right to effective representation of the large numbers of voters who are unable to contribute to the election of a representative that they support, thus ending up poorly ‘represented’ (or even actively opposed) in Parliament by an MP from a party they do not support.
52. Second, SMP breaches the right to effective representation of voters for small parties, whose votes are worth less than those for larger or regional parties. ...
53. Finally, SMP breaches the effective representation of voters by producing serious and flagrant violations of the principle of majority rule. ...
Just as s. 3 protects the right of all voters to an MP who provides constituency representation, it also, and indeed primarily, protects their right to an MP who provides them with “legislative”, “political”, or “issues” representation. ...
Importantly, the evidence confirms that PR systems with districts are as effective as SMP at providing constituency representation, so SMP cannot be justified on the basis that its level of constituency representation compensates for its deficiency in legislative representation
55. ... , in practice, MPs under SMP do not and cannot provide legislative representation to most of their constituents, and that this deficiency leaves many voters with a “reduced” voice in the deliberations of government...
4. The Judge fell into legal error by conflating the analysis under ss. 1 and 3 of the Charter
56. In his s. 3 analysis, the Application Judge purported to “balance[e]” the competing values protected by PR and SMP under s. 3 of the Charter, with a “pragmatic eye to effective representation”
5. The Application Judge erred in finding that the Application seeks specific “outcomes”
59. The Judge also claimed the Application demanded specific “electoral outcomes” or the election of a “specific form of government” rather than an electoral process protecting voter rights. This position mischaracterizes the Application, which is about SMP’s structural inability to effectively represent many Canadian voters and encourage their participation in the election.
=================================
ISSUE 2: The Application Judge erred in his treatment of the s. 15 Charter claims item No. 60. In its effects, SMP contributes to the under-representation of women and Indigenous, racialized, and national minorities in Parliament, by incentivizing political parties to predominantly run white men as candidates in the most winnable ridings. This reduces the likelihood that women and minorities will be elected to Parliament.
In contrast, PR electoral systems incentivize parties to engage in ticket-balancing that leads to more seats for women and a broader distribution of seats across diverse minority groups and outside of minority silos. ...
1. The Application Judge erred in imposing a heightened causation threshold ...
[he said women are not elected but there is no proof that it is mostly caused by SMP. Appeal says you do not need to prove that SMP is the primary cause but only that it does contribute to the under-representation...]
2. The Application Judge made unreasonable factual findings on the representation of women and minorities
--------------------
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Three palpably and overridingly wrong findings.
65. In his assessment of the evidence on women and minorities, the Judge made three palpably and overridingly wrong findings.
First, he denied any nexus between the electoral system and the representation of women in Parliament, finding that a switch from SMP to PR [alone would do little or nothing]
67. Second, the Judge found that “the electoral system may reflect, but does not cause, racial disparities” [experts proved that concentrated grops benefit from SMP while geogrpahicall dispersed groups do not.]
Prof. Tolley argued that changing the electoral system would likely not correct minority underrepresentation because there is evidence that party selectors in Canada are less likely to select racialized candidates over white candidates under SMP.
But this does not account for
(i) evidence that countries with MMP systems elect more immigrant-origin MPs through lists than through single-member districts (which confirms that party selectors do place racialized MPs on lists);
(ii) evidence from open list PR systems showing that they increase minority representation by circumventing party elites who otherwise marginalize racialized candidates; and
(iii) evidence showing that the problem of underrepresentation of racialized minorities is largely a problem of underrepresentation of racialized women, which suggests that the improved representation of women under PR would also improve minority representation.
[and anyways not all PR uses lists - STV allows voters themselves to choose whether they want to support women or male candidatres even of the same party in many cases.]
68. Third, the Judge found that “there is nothing in the record” to explain why a change from SMP to PR elections in Canada would parallel the changes in women, racialized, and Indigenous representation observed in New Zealand following its reform. This is wrong. [there are many similarities between NZ and Canada.]
[NZ's change to MMP did improve rep. for women
item 31: the adoption of PR would likely raise the share of elected women – similarly to New Zealand following its electoral reform.
item no. 35: This study is consistent with events in New Zealand, which has seen a significant increase in women elected following its reform to PR, and Australia, where the lower house (elected through a majoritarian system) has 29% of women while the upper house (elected through PR) has 39%.
==========
I. SMP disadvantages various racialized minorities and Indigenous Peoples.
Because of its winner-takes-all characteristics, Canada’s SMP has a clear mechanical effect of disproportionately advantaging geographically clustered minorities (eg, Bloc Québécois voters and voters of South Asian descent) and disadvantaging more geographically dispersed ones (eg, Indigenous Peoples, Blacks, Filipino Canadians, Chinese Canadians, and Francophones outside Quebec).
35. Respondent expert Prof. Loewen termed New Zealand a “natural experiment” to see what might happen if Canada adopted a PR system. There, the reform to MMP brought about a significant and sustained increase in the representation of minorities, such that the Indigenous Māori population, the Pacific Islander population, and “other” minority populations are now all at least proportionally represented. The Māori population gained representation both through the party lists and through the emergence of a viable Māori party, features that were a direct result of the reform to MMP. [and as well Maori have dedicated seats just for Maori voters.]
...The scholarship confirms that MMP in New Zealand has “clearly been a success” in terms of increasing the levels and diversity of representation in parliament, including the Indigenous population and reflects PR’s ability to “more fully” represent society.
36. Again, however, the Judge found that PR “in and of itself” will not increase minority representation, which turns on “the political disposition of party leadership in populating the party list”. As such PR “would not address the cause of minority underrepresentation”
[open list PR and STV both do not allow parties to solely dictate ranking of candidates on list. a form of MMP can be invented where party list ranking is dictated by party tallies of candidates.]
...
70. The evidence confirms that the underrepresentation of women and minorities in Parliament has the effect of reinforcing, perpetuating, or exacerbating disadvantages. [the electoral system can move social change .]
In the end
37. On 30 November 2023, the Judge dismissed the Application, despite effectively finding that SMP has damaged Canada’s democracy by reducing the voices of voters and the legitimacy of Parliament, unfairly representing voters, and creating minority rule...
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[The appeal gives a somewhat-potted history of Canadian elections,
saying
"25. This finding was supported in the Record, which showed that, in the past decades, Canada has unambiguously moved away from majority rule.
From Confederation until 1921, federal elections were contested between two political parties.
[actually from the start, more than just the two main parties competed.
In the very first election (1867), a third party took 18 seats so the House of Commons itself was divided between more than just two parties. In 1867, almost as many candidates ran for other labels or as Independents than ran for the Liberal and Conservative parties (which includes Liberal-Conservatives).]
All 13 parliaments in that period had majority governments.
[It depends on the sources you use -- Parlinfo says in the 1867 election Macdonald's Conservative and Liberal-Conservative did not have majority of votes cast.
And 1896 election was not only a false-majority election but also a wrong-winner eleciton - Laurier with only 41 percent of the votes had fewer votes than Tupper's Conservatives but took majority government.]
On all but one occasion, they were led by parties who won over 50% of the popular vote. [I counted at least two just in 1867 and 1896.]
Since 1921, however, a broader range of parties have contested elections. [Labour and Farmers and Socialists had contested elections earlier than 1921, but yes 1921 is commonly taken as a turning point in Canadian elections apparently for the reason that in that year the Progressive Party (and UFA MPs) had good leverage as the Liberal government did not have overwhelming majority in the HofC.
And even by 1800s there were calls for electoral change - prominent Liberal MP Richard Cartwright called for pro-rep at that time.]
Only three of the 30 elections since then have produced Parliaments where the winning party’s candidates won over 50% of the popular vote (only once since 1962). [1984]
Yet the winning party has held majority power close to 67% of the time (~41 of the 61 years).
[so since 1921, FPTP has produced majority government more often than not, but in almost all cases this has been based on a minority of the votes cast. Surely an undemocratic outcome like that should be addressed to prevent it happening again.]
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Block Voting - the cinderella of election systems
As well the appeal speaks only of Single Member Plurality (SMP) while Canadian elecctions often used Block Voting as well, not to mention the use of multi-member districts where STV or the post/seat system (with IRV or SMP) was used.
The BC elections of 1983 to 1991 are held up as example of undemocratic outcome (see Montopedia blog on this), but two of those elecions elected almost as many MLAs through block voting as SMP. (item No. 21)
No. 21: ...From 1979 to 1996, the NDP’s vote share decreased in each of five provincial elections, slipping from 46% to 39%; yet it went from a minority party in opposition to a single party majority in 1996; ...
======
SMP is a better term than the term "majoritarian," which many use to describe FPTP although there is nothing guaranteed about majority representation under FPTP.
Factual description of Canadian elections as containing elements of Block Voting - every federal election up to 1970 elected at least two through Block Voting - helps open the door to electroral reform - there is nothing sacred or universal or constitutionally required about Canada's use of SMP.
We can change our election system and have done so in the past.
Canada's current use of SMP in federal elections and in all provincial elections is a result of electoral reform!]
=======================
"Wrong outcome"
The appeal mentions a new term "wrong outcome", new to me anyway. (item no. 21)
"Wrong outcomes" happened in 1957, 1979, 2019, and 2021.
Such happened in 2021 when the Liberals took fewer votes than the Conservatives but took more seats, becoming govenment but not majority government.
if they had taken majority government as so many other minority but leading parties had done before, it would've been a "wrong-winner" "false-majority" government.
This was just a "wrong outcome" election.
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