Discarded Votes Deny Effective Representation

To understand the democratic principles on which our political system is supposed to draw upon we must look back to its birthplace in ancient Greece.

At its inception, democracy was direct and participatory. Although citizenship in Athens was restricted to Athenian males of a certain age, each citizen had the right to attend and address the Athenian assembly. There was no need for intermediaries to represent their concerns.

In the modern state, because of the large number of citizens, it is impractical to have everyone to attend the meetings of the assembly, which necessitates citizens being represented by elected officials.

Importantly, there is no perfect method to do so. When reducing a large number of citizens to a relatively smaller number of elected officials, there is always room for error given that the diversity of preferences cannot be captured perfectly by a finite number of seats. Some groups will be over-represented at the expense of others.

The important considerations with regard to quality of the representation are whether the formula used to translate votes into seats uses all of the votes cast as the basis of determining the representation and the number of seats available within an electoral district.

For instance, if the number of seats available in an electoral district is sufficiently large, the number of seats available exceeds the number of political parties contesting the election, and the seats are divided in proportion to the number of votes cast for each party, the distribution of seats relative to the distribution of votes will be fairly accurate and the vast majority of electors will find representation.

This is the case in countries like the Netherlands and Israel which use the entire nation as a single electoral district and assign seats based on the percentage each party receives of all the votes cast. Although the distribution of seats is not perfectly proportional, rounding errors occur and parties which receive less votes than the total number of votes cast divided by the total number of seats available may not be represented, over all, this method yields highly accurate results.

The magnitude of the disparity caused by rounding and parties failing to reach the threshold of votes required to gain a single seat increases as we divide up a single nation-wide electoral district into a number of smaller geographical electoral districts. Nevertheless, as long as we are dividing up the seats on the basis of the popular vote and the number of seats is not reduced so to limit the representation of a significant number of voters, the vast majority of electors will be effectively represented.

This is not the case when we abandon the attribution of seats on the basis of the percentage of the popular vote and instead attribute seats on the basis of a candidate obtaining a majority or a plurality of votes cast in each electoral district. In either case, only those electors whose votes are used in establishing the majority or the plurality are effectively represented. All of the votes not used in establishing the majority or the plurality are simply discarded and the electors who cast them are denied effective representation.

This feature of majoritarian and plurality voting methods is profoundly antidemocratic. If at the heart of the exercise is the desire to give effective representation to as many citizens as is mathematically possible, voting methods that systemically discard a great number of votes are in flagrant violation of one of the most fundamental democratic principles.

Indeed, all of the perverse effects of majoritarian and plurality systems: over-representation of the governing party, under-representation of the opposition, no representation of smaller parties, and the reversal of electoral results that occurs when a political party that receives less of the popular vote than a rival party goes on to form a majority government are attributable to votes being discarded.

Importantly, the distortions caused by these voting methods are over and above those caused by reducing a large number of citizens to a much smaller number of elected representatives. In fact, the distortions are socially constructed as a result of the mechanisms employed to convert votes into seats.

In the worst case, first-past-the-post demands only a simple plurality to determine the winning candidate. Most often when more than two candidates run for office, the winning candidate will garner less than half of the votes, which means that a majority of voters have voted against their elected representative.

In short, first-past-the-post violates not only the effective representation for all citizens requirement of democratic electoral systems, but the majority rule principle as well.

Voting methods that aggregate voting preferences or engage in two or more rounds to select a candidate abide by the majority rule principle but violate the effective representation requirement in that they most often depend on the lesser choices of many voters to bolster the authentic choice of a minority of voters to elect a candidate. More voters participate in choosing the elected representative than when a plurality method is used, but the participation is qualitatively unequal: second or third choices are unequal to first choices, but in the tallying of votes they are accorded the same weight.

This brings us to the our case that contests the constitutionality of the first-past-the-post method in Canada. According to the jurisprudence from the Supreme Court of Canada, the Charter of Rights and Freedoms guarantees the right to effective representation to all citizens. Given that candidates from political parties almost invariably elected to Parliament and in practice vote on party lines, those citizens that voted for other candidates are denied effective representation having lost their effective voice in Parliament.

As a result, we hold that if the Supreme Court of Canada decides in this case to uphold the values of a free and democratic society, it will have no choice but to declare the articles in the Quebec Electoral Act that bring about the first-past-the-post system null and void which will be tantamount to declaring the use of the method unconstitutional in other provincial legislatures and in Parliament.