Is a nation that uses a plurality/winner-take-all electoral system to determine representation in its legislature democratic? This is the crux of the matter before the courts.
At the most fundamental level, democracy is the rule of the majority, and a plurality is not a majority. Duly-elected governments using a plurality voting method may have many virtues, but they rarely produce a government that has the support of the majority of its citizens. Therefore, only in rare instances are they democratic.
In Canada, section 3 of the Charter of Rights and Freedoms guarantees that each citizen has the right to effective representation and to participate meaningfully in the electoral process. These are substantive rights that go beyond the right to place a vote into a ballot box. Moreover, judgements concerning the application of above-mentioned rights must conform to the values of a free and democratic society.
Upon application of the plurality voting method, the candidate who gets the most votes wins, and all other votes beyond what is necessary to establish the plurality are simply discarded. Most often, these ineffective votes comprise the majority of votes cast in the electoral district.
Consequently, the plurality method is not democratically legitimate. It lacks a mechanism that can take the discarded votes and make them effective. Generally speaking, there are two types of mechanisms in use to counter the problem: an aggregation of votes across electoral districts and a redistribution of seats based on the aggregation or a compilation of voting preferences within electoral districts in order to establish which candidate has the support of the majority of electors.
It is the addition of these mechanisms to the simple procedure of counting the initial votes cast for each candidate in every electoral district that produces a democratically legitimate electoral result. It is the absence of any such mechanism that renders the plurality method democratically illegitimate.
Importantly, the motion before the Courts has as its objective to obtain a judgement that declares the plurality method democratically illegitimate and as a result constitutionally null and void. It does not ask the Court to provide the remedy. There are a number of voting methods available from both the proportional and majoritarian categories that can restore democratic legitimacy to our electoral process. The Court may give guidance with regard to how the right to effective representation and meaningful participation in the electoral process must be respected, but the choice of which voting system will replace the plurality method will rest with the legislature.
We anticipate that the Quebec government will be given one year to comply with the decision, which promises to finally bring about a political debate concerning the voting system that must lead to a substantive result. As well, we anticipate that similar motions would be filed elsewhere in Canada.