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.
Monday, May 9, 2011
Friday, April 1, 2011
The Federal Court of Appeal Should Grant a Interlocutory Injunction Against the Exclusion of Elizabeth May from the Televised Leaders Debate
I think that it should be obvious by now that the Greens are subject to some very serious discrimination against their fundamental democratic rights. I also believe that the exclusion of Elizabeth May from the televised leaders debate illustrates the systemic nature of this discrimination.
Keep in mind that during the 2008 federal election, the Greens received almost one million votes and were not awarded a single seat in Parliament. To put that in perspective, the Bloc Quebecois received 1.3 million votes and received 49 seats.
As you know, if you follow this blog, we have contested the constitutionality of the voting system that could bring about such a democratic anomaly. Both Elizabeth May and Fair Vote Canada were granted intervenor status. Our appeal was heard on Feb. 8, 2011 and a decision is pending.
The reason given by the television consortium for excluding Ms. May was that the Greens had not won a seat in Parliament. Hey, wait a minute isn't the constitutionality of the very said voting system that makes it such that a million electors forgo effective representation despite their numbers presently before the Quebec Court of Appeal?
Given that the decision hasn't been rendered but is expected shortly and it is entirely possible that the grounds put forward to justify the exclusion of Ms. May would also be rendered untenable if the Court strikes down the use of the very same voting system, the Federal Court should grant an interlocutory injunction that maintains the status quo, which means as was the case in 2008, Ms. May would participate in the leaders debate.
After the Quebec Court of Appeal has rendered its decision, then the question put before the Federal Court can be examined and decided upon. To rule beforehand could expose the plaintiff to irreparable harm since her exclusion from the debate could prevent voters who might be otherwise inclined to vote for the Greens from doing so if they had had the opportunity to witness her participation during the leaders debate. Moreover, her inclusion in the debate would not be prejudicial to the other leaders since they opted to participate in such a debate in 2008.
Clearly, the Federal Court of Appeal has the opportunity to uphold the values of a free and democratic society and we would hope that it would do its part in bringing the systemic discrimination against the Greens to an end.
Keep in mind that during the 2008 federal election, the Greens received almost one million votes and were not awarded a single seat in Parliament. To put that in perspective, the Bloc Quebecois received 1.3 million votes and received 49 seats.
As you know, if you follow this blog, we have contested the constitutionality of the voting system that could bring about such a democratic anomaly. Both Elizabeth May and Fair Vote Canada were granted intervenor status. Our appeal was heard on Feb. 8, 2011 and a decision is pending.
The reason given by the television consortium for excluding Ms. May was that the Greens had not won a seat in Parliament. Hey, wait a minute isn't the constitutionality of the very said voting system that makes it such that a million electors forgo effective representation despite their numbers presently before the Quebec Court of Appeal?
Given that the decision hasn't been rendered but is expected shortly and it is entirely possible that the grounds put forward to justify the exclusion of Ms. May would also be rendered untenable if the Court strikes down the use of the very same voting system, the Federal Court should grant an interlocutory injunction that maintains the status quo, which means as was the case in 2008, Ms. May would participate in the leaders debate.
After the Quebec Court of Appeal has rendered its decision, then the question put before the Federal Court can be examined and decided upon. To rule beforehand could expose the plaintiff to irreparable harm since her exclusion from the debate could prevent voters who might be otherwise inclined to vote for the Greens from doing so if they had had the opportunity to witness her participation during the leaders debate. Moreover, her inclusion in the debate would not be prejudicial to the other leaders since they opted to participate in such a debate in 2008.
Clearly, the Federal Court of Appeal has the opportunity to uphold the values of a free and democratic society and we would hope that it would do its part in bringing the systemic discrimination against the Greens to an end.
Wednesday, March 16, 2011
Quebec's Major Political Parties Collude to Maintain the Worst Electoral System in North America
Quebec's two major political parties refuse to uphold one of the most fundamental principles of democracy: one person, one vote.
Stuck with an outdated electoral system and having refused to change the voting system both parties voted to suspend the powers of the Director General of Elections who had the audacity of proposing an electoral map that respected that constitutional requirements of the relative parity of the vote.
Presently, 27 of the 125 ridings do not conform to the Quebec Electoral Law's stipulation that the number of electors per riding can be no more or no less than a 25% deviation from the average number of electors per riding province wide. The proposed map would have rectified this anomaly.
This week the PQ recommended that there be two different provincial quotients, one for rural ridings and one for urban ridings, which means that the inequality of the vote would become institutionalized. Furthermore, this move would be in the national interest. Remember this is the party that claims to be socially democratic. I guess some social democrats are more equal than others depending where you live.
Not to be outdone, the Quebec Liberals then proposed that they would add three additional electoral districts to the map. Too bad it would take at least 26 additional seats to lower the provincial average for the number of electors per riding so that all of the ridings would conform to Quebec's own electoral law.
I hope the judges who are now rendering their decision in our motion to have Quebec's voting system declared unconstitutional take notice that at the moment Quebec does not have the institutional capacity to bring its electoral system within the democratic norms of a developed country.
Declaring First-Past-The-Post to be unconstitutional would help break the impasse.
Stuck with an outdated electoral system and having refused to change the voting system both parties voted to suspend the powers of the Director General of Elections who had the audacity of proposing an electoral map that respected that constitutional requirements of the relative parity of the vote.
Presently, 27 of the 125 ridings do not conform to the Quebec Electoral Law's stipulation that the number of electors per riding can be no more or no less than a 25% deviation from the average number of electors per riding province wide. The proposed map would have rectified this anomaly.
This week the PQ recommended that there be two different provincial quotients, one for rural ridings and one for urban ridings, which means that the inequality of the vote would become institutionalized. Furthermore, this move would be in the national interest. Remember this is the party that claims to be socially democratic. I guess some social democrats are more equal than others depending where you live.
Not to be outdone, the Quebec Liberals then proposed that they would add three additional electoral districts to the map. Too bad it would take at least 26 additional seats to lower the provincial average for the number of electors per riding so that all of the ridings would conform to Quebec's own electoral law.
I hope the judges who are now rendering their decision in our motion to have Quebec's voting system declared unconstitutional take notice that at the moment Quebec does not have the institutional capacity to bring its electoral system within the democratic norms of a developed country.
Declaring First-Past-The-Post to be unconstitutional would help break the impasse.
Thursday, February 17, 2011
Referendum in the UK on the Voting System Aids Our Cause
Well, it's official. There will be a referendum on the voting system in the UK on May 5, 2011. From a legal standpoint, this is very good news. In short, the holding of the referendum and the choices given to the electorate torpedo two of the principle arguments put forward by Quebec's Attorney General.
The first argument is that the first-past-the-post system could not be unconstitutional since it is part of our constitutional legacy to be found in the B.N.A. Act. However, by putting the question to a vote, this demonstrates that choice of a voting system is not frozen in time. It is something that evolves over time much like the extension of the franchise. Just as the refusal to not extend the vote to women in 1867 could not pass constitutional muster in a today's post-Charter Canada, the same can be said of the voting system, especially when we take in consideration that holding a referendum on the question bespeaks of its fundamental problems. Essentially, the referendum in the UK gives legitimacy that the question that we are putting before the courts is indeed subject to judicial review.
The second argument that falls by the way side is the claim that we are attempting to have the courts impose a particular voting system on the Quebec legislature. On the contrary, the choice of a second majoritarian voting system on the ballot demonstrates without question that the legislature can opt for an alternative method other than a proportional voting system.
If we were at the lower court, I'm not sure if the judge would grasp the significance of this development, but now that we are at Quebec's highest court and given the type of interventions made by the judges during the appeal, I am confident that they will give this development the consideration it deserves.
The first argument is that the first-past-the-post system could not be unconstitutional since it is part of our constitutional legacy to be found in the B.N.A. Act. However, by putting the question to a vote, this demonstrates that choice of a voting system is not frozen in time. It is something that evolves over time much like the extension of the franchise. Just as the refusal to not extend the vote to women in 1867 could not pass constitutional muster in a today's post-Charter Canada, the same can be said of the voting system, especially when we take in consideration that holding a referendum on the question bespeaks of its fundamental problems. Essentially, the referendum in the UK gives legitimacy that the question that we are putting before the courts is indeed subject to judicial review.
The second argument that falls by the way side is the claim that we are attempting to have the courts impose a particular voting system on the Quebec legislature. On the contrary, the choice of a second majoritarian voting system on the ballot demonstrates without question that the legislature can opt for an alternative method other than a proportional voting system.
If we were at the lower court, I'm not sure if the judge would grasp the significance of this development, but now that we are at Quebec's highest court and given the type of interventions made by the judges during the appeal, I am confident that they will give this development the consideration it deserves.
Wednesday, February 9, 2011
Julius Grey and Peter Rosenthal 2, Quebec Attorney General 0
Going into Court yesterday our expectations were low. We knew the judges that were selected are conservative and unlikely to support a Charter Challenge. However, upon leaving the Court we were all on a high, having realized that based on the oral arguments, we had carried the day.
This time around, we were in front of a trio of judges that had read the factums, the expert testimony and the transcripts from our trial at the Superior Court. That was not the case the first time around when it was obvious that the trial judge had not prepared properly, and, for the life of me, I don't think he really understood the nature of the question before him.
In this instance, six days of arguments were reduced to a single day. Two questions emerged. Is the question judicable? Does the fact that all voting systems create some type of distortion mean that the distortions of FPTP are no better, no worse than any other voting system and that consequently the choice of electoral system is entirely political?
In his opening statement, Mr. Grey was eloquent. He focused his presentation on why the Court needed to intervene and to draw a parallel between the case before the Court and historic decisions from the past.
Thereafter, Mr. Rosenthal critiqued the lower court decision and the factum submitted by the Crown on points of law. He then went on to explain how FPTP discriminated against women.
It was then the Crown's turn, and I am being kind when I say that the principle lawyer representing the Crown was ill-prepared. He was all over the place in his presentation, was interrupted several times by the three judges and was reproached twice. This seemed to rattle him. He seemed to be content to read aloud much too quickly citation after citation. The second lawyer who followed did much the same, leaving us with the feeling that both of them had added nothing to their cause.
As it turned out we had the last word and Mr. Grey in one feel swoop destroyed one of the principle arguments of the Crown. He cited the Saskatchewan Reference written by the Chief Justice of the Supreme Court of Canada, which points out that absolute voting parity is not required but that undue dilution of the vote shall not be countenanced and that deviations are acceptable in only two instances: logistical impossibility or if the deviation gives better representation. This is certainly not the case with FPTP and the Crown provided no evidence to demonstrate that the distortions were attributed to either instance.
Exasperated, the lawyer representing the Crown was beside himself throwing his glasses on the table. Undoubtedly, a sign of a lack of emotional intelligence on his part.
Mr. Rosenthal then followed with a brilliant summary reminding the Court that in this instance, due to the type of discrimination brought about by FPTP, the Court was obliged them to act, and that the level of discrimination was much, much greater than in Figueroa, a seminal decision by the Supreme Court of Canada in which the Court decided to intervene.
Based on the oral arguments, it was clear that our lawyers had out performed the Crown. Will this be enough to get the decision we are looking for? We'll know sixty to ninety days from now.
Thanks to Julius and Peter for a brilliant performance.
This time around, we were in front of a trio of judges that had read the factums, the expert testimony and the transcripts from our trial at the Superior Court. That was not the case the first time around when it was obvious that the trial judge had not prepared properly, and, for the life of me, I don't think he really understood the nature of the question before him.
In this instance, six days of arguments were reduced to a single day. Two questions emerged. Is the question judicable? Does the fact that all voting systems create some type of distortion mean that the distortions of FPTP are no better, no worse than any other voting system and that consequently the choice of electoral system is entirely political?
In his opening statement, Mr. Grey was eloquent. He focused his presentation on why the Court needed to intervene and to draw a parallel between the case before the Court and historic decisions from the past.
Thereafter, Mr. Rosenthal critiqued the lower court decision and the factum submitted by the Crown on points of law. He then went on to explain how FPTP discriminated against women.
It was then the Crown's turn, and I am being kind when I say that the principle lawyer representing the Crown was ill-prepared. He was all over the place in his presentation, was interrupted several times by the three judges and was reproached twice. This seemed to rattle him. He seemed to be content to read aloud much too quickly citation after citation. The second lawyer who followed did much the same, leaving us with the feeling that both of them had added nothing to their cause.
As it turned out we had the last word and Mr. Grey in one feel swoop destroyed one of the principle arguments of the Crown. He cited the Saskatchewan Reference written by the Chief Justice of the Supreme Court of Canada, which points out that absolute voting parity is not required but that undue dilution of the vote shall not be countenanced and that deviations are acceptable in only two instances: logistical impossibility or if the deviation gives better representation. This is certainly not the case with FPTP and the Crown provided no evidence to demonstrate that the distortions were attributed to either instance.
Exasperated, the lawyer representing the Crown was beside himself throwing his glasses on the table. Undoubtedly, a sign of a lack of emotional intelligence on his part.
Mr. Rosenthal then followed with a brilliant summary reminding the Court that in this instance, due to the type of discrimination brought about by FPTP, the Court was obliged them to act, and that the level of discrimination was much, much greater than in Figueroa, a seminal decision by the Supreme Court of Canada in which the Court decided to intervene.
Based on the oral arguments, it was clear that our lawyers had out performed the Crown. Will this be enough to get the decision we are looking for? We'll know sixty to ninety days from now.
Thanks to Julius and Peter for a brilliant performance.
Monday, February 7, 2011
The Democratic Legitimacy of the Quebec Government Challenged in Court
Montreal, February 7, 2011 – Lawyers Julius Grey, representing the Association for the Advancement of Democratic Rights (AADR), and Peter Rosenthal, representing Fair Vote Canada and Elizabeth May, leader of the Green Party of Canada, will present their arguments in the Quebec Court of Appeal in Montreal, Édifice Ernest-Cormier, 100 rue Notre-Dame Est, February 8, 2011, at 9:30 a.m. to have the current voting system declared unconstitutional.
A press conference will be held in the foyer of Édifice Ernest-Cormier February 8 at 9:00 a.m.
According to the President of the AADR, Patrick Daoust, "the current electoral system discards the majority of votes. As a result, following an election the government rarely has the support of the majority of the electorate but governs as if it had a majority."
Legal arguments will focus specifically on the manner that the voting system discriminates against supporters of smaller political parties, women, and members of cultural communities, and how the system functions to produce electoral results that do not reflect the popular vote.
Mr. Daoust adds that "politicians have been promising to change the voting system for the last forty years. It’s time for the Court to intercede. At question is a fundamental principle of democracy, the equality of the vote, and it is time for the Court to declare that the representation given by the present system is not democratic."
For more information, please contact:
Patrick Daoust 514-659-7786
Green Party of Canada 613-240-8921
Fair Vote Canada Canada 905-903-2190
A press conference will be held in the foyer of Édifice Ernest-Cormier February 8 at 9:00 a.m.
According to the President of the AADR, Patrick Daoust, "the current electoral system discards the majority of votes. As a result, following an election the government rarely has the support of the majority of the electorate but governs as if it had a majority."
Legal arguments will focus specifically on the manner that the voting system discriminates against supporters of smaller political parties, women, and members of cultural communities, and how the system functions to produce electoral results that do not reflect the popular vote.
Mr. Daoust adds that "politicians have been promising to change the voting system for the last forty years. It’s time for the Court to intercede. At question is a fundamental principle of democracy, the equality of the vote, and it is time for the Court to declare that the representation given by the present system is not democratic."
For more information, please contact:
Patrick Daoust 514-659-7786
Green Party of Canada 613-240-8921
Fair Vote Canada Canada 905-903-2190
Thursday, February 3, 2011
First-Past-The-Post Discrimination Against Women To Be Challenged at Trial
Peter Rosenthal, the lawyer representing Elizabeth May in the Quebec Voting System Charter Challenge set to be heard at the Quebec Court of Appeal, will be bringing forth a new argument in the case. In short, he will argue that First-Past-The-Post (FPTP) discriminates against women since they are in general under represented in countries that use our voting system.
It will be interesting to see how the Court responds to his argument. The cited discrimination is well known and supported by the evidence submitted by the Crown's expert witness.
This argument will counter the lower court's dismissal of the plaintiff's claim that FPTP discriminates against the Anglophone and Allophone population. For example, in Quebec those ridings whet Anglophones and Allophones make up more than 20% of the electorate have on average 7% less voting power than the provincial average. As well, because of the wasted vote phenomenon playing out in these ridings, the participation rates in these voting districts is 13% lower than the provincial average.
In the lower court's decision, the presiding judge found that discrimination on a linguistic basis is not protected by Section 15 of the Charter.
However, this cannot be said of discrimination on the basis of gender, which is protected by Section 15 equality guarantees.
The case goes to trial on Feb. 8, 2011 at the Quebec Appeal Court of Appeal in Montreal. Of note, the Appeal Court rejected the Crown's request for a delay due to the possibility that the province's crown attorneys are set to go on strike.
It will be interesting to see how the Court responds to his argument. The cited discrimination is well known and supported by the evidence submitted by the Crown's expert witness.
This argument will counter the lower court's dismissal of the plaintiff's claim that FPTP discriminates against the Anglophone and Allophone population. For example, in Quebec those ridings whet Anglophones and Allophones make up more than 20% of the electorate have on average 7% less voting power than the provincial average. As well, because of the wasted vote phenomenon playing out in these ridings, the participation rates in these voting districts is 13% lower than the provincial average.
In the lower court's decision, the presiding judge found that discrimination on a linguistic basis is not protected by Section 15 of the Charter.
However, this cannot be said of discrimination on the basis of gender, which is protected by Section 15 equality guarantees.
The case goes to trial on Feb. 8, 2011 at the Quebec Appeal Court of Appeal in Montreal. Of note, the Appeal Court rejected the Crown's request for a delay due to the possibility that the province's crown attorneys are set to go on strike.
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