Electoral and Referendum Results Demonstrate the Need for the Courts to Intervene

Last week's results for the Canadian federal election and the crushing defeat of the alternative vote option in the United Kingdom's referendum on the voting system clearly demonstrates why the courts need to intervene in order to change the voting system.

Looking at the electoral results, first-past-the-post's propensity to produce significant distortions of the popular vote held true to form. Essentially, the election was decided by the huge winner's bonus that the system awarded the NDP in Quebec, which was more than offset by the vote splitting in Ontario that created the conditions for the Conservatives to form a majority government despite the fact that that had received slightly less than 40% of the popular vote. In a tell tale sign on the inadequacy of first-past-the-post, the Greens were able to concentrate their efforts into a single riding and elect their first Member of Parliament, but this came at a cost of loosing one third of their share of the popular vote as compared to the previous federal election.

Clearly, the systemic distortions inherent to the system were manifest and this time it was in Quebec where both the Liberals and the Bloc Quebecois received the greatest reductions of seats as compared with the popular vote: a first for both parties during the last twenty years, which should catch the attention of the judges at the Quebec Court of Appeal.

In a similar vein, the massive refusal to change the voting system in the UK follows similar results on voting system referendums in British Columbia and Ontario. It appears that the populations in all three jurisdictions do not find the discrimination perpetuated by first-past-the-post to be sufficient to warrant changing the system.

Since the right to vote is protected by the Canadian Charter of Rights and Freedoms and the political process has failed to change the voting system in a manner so that these rights are protected for all citizens, the Court is indeed obliged to intervene.

Only by striking down the electoral law that brings about first-past-the-post can the legislative branch be forced to bring its electoral practices in line with the equality guarantees of the Charter.

In doing so, the Quebec Court of Appeal would be following the example of the American Supreme Court that struck down state electoral laws that were extremely discriminatory towards African Americans and led the way to the adoption of the Voting Rights Act.