Confronting Cognitive Bias on the Bench

Having had some time to reflect on the latest decision from the Quebec Court of Appeal that rejects our motion to have the first-past-the-post voting system declared unconstitutional and while waiting to see if the Supreme Court of Canada will hear our appeal, I recently read Daniel Kahneman's best-selling book, Thinking, Fast and Slow.

It is a masterpiece detailing how heuristics and cognitive bias come into play in judgements and decision making. I can't help but think that the key to having a decision rendered on our behalf is to confront the cognitive bias we have been subjected at the lower courts. What follows is an analysis of how cognitive bias came into play in the judgment.

At first glance, it is somewhat disconcerting to have one's rational and empirical arguments that demonstrate first-past-the-post's glaring distortions of voting results to be dismissed without discussion by the simple maxim that it is not sufficient to show that the voting system creates distortions, even if it reverses the results of the popular vote and a political party that garners one million votes is denied any representation whatsoever.

In other words, it doesn't matter what evidence you present because the nature of your request requires us to declare that the voting system in place since confederation is not democratic.

Yes, that's it in a nutshell. Any voting system that allows a political party to assume the political power of the majority without having the support of the majority of the electorate is profoundly undemocratic.

It is at this point an affect bias enters into the deliberations. To render a judgement that deems that the electoral system is fundamentally undemocratic is to raise unsettling questions concerning the legitimacy of the system of governance in place. Indeed, this could be an undesirable turn of events that might impact upon the stability that we have known as a result of our political system.

Thereafter, a second cognitive bias, the aversion to loss, comes into play: better the devil you know than the devil you don't. Effectively, to declare the present voting system unconstitutional would force the Quebec government, the federal government, and the other provincial and territorial governments into the unknown, seeing that they would have to put an alternative voting method into place. This process could bring about some unintended consequences whose negative effects would outweigh the positive results of having better representation.

Doing a quick risk analysis, the judges could reasonably conclude that since no voting system is perfect and the one in place has served us well over the years, it is not worth the risk to force a societal change upon Canadians regardless of the opportunities for better governance that a new voting system might entail.

Finally, to dismiss the motion all that needs to be done is to perform a simple heuristic substitution: replace the the concept of democratic rule with the belief that the oligarchic rule that is presently in place is in fact democratic. If you tell a big lie often enough, people will believe it. That way, it can be shown that the present voting system is not discriminatory since the systemic distortions inherent to first-past-the-post are available for the benefit of the supporters of any political party. The ability to form a false majority is transferable. Live by the sword; die by the sword.

In closing, if we are to have our motion for a declaratory judgment granted, we will have to confront and overcome the cognitive bias we have experienced at the lower courts. Hopefully, the Supreme Court will afford us the opportunity.

May and Fair Vote Canada Support Court Challenge of First-Past-the-Post

15 November 2011

OTTAWA - Members of the Association for the Advancement of Democratic Rights, represented by the accomplished constitutional Montreal lawyer, Julius Grey, will file their appeal to the Supreme Court to have heard, their case regarding the constitutional merits of first-past-the-post. The motion asks for the system to be struck down. A favorable decision would prohibit its continued use in Quebec and would certainly impact on its continued use in the rest of Canada.

Elizabeth May and Fair Vote Canada were granted intervenor status by the Quebec Court of Appeal and will again apply for such status if the case were to be heard by Canada's Supreme Court. Both parties are represented by Peter Rosenthal, an experienced constitutional lawyer from Toronto, who has also been successful in his presentations before Canada's highest court.

“Canada’s Charter of Rights and Freedoms guarantees us the right to vote,” said Wayne Smith, Executive Director of Fair Vote Canada (FVC). “The Supreme Court has ruled in previous decisions that this doesn’t just mean the right to put a piece of paper in a box. We are guaranteed the right to effective representation.”

At the press conference Smith announced that, Fair Vote Canada, Canada’s national citizens’ movement for electoral reform will contribute $10,000 in matching funding to support a challenge in the Supreme Court of Canada.

“The damage done by first-past-the-post extends from the voting box to the very degradation of political discourse in this country,” added Green Party Leader Elizabeth May. “When a party can achieve majority control over the entire country with as little as 38% it is evident that our voting system delivers unfair and anti-democratic results.”

“Having gone through the courts in Quebec only to have our empirical evidence and expert testimony virtually ignored, we are hoping that the Supreme Court will hear our appeal and give our case due consideration,” said Brian Gibb from the Association for the Advancement of Democratic Rights and one of the principle plaintiffs in the case. “We anticipate that the Court will render its decision on whether to hear our case within the next six months.”

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.

It's Now Up To The Supreme Court of Canada

Seven years later, two refusals to entertain the evidence, we finally arrive at the end point of our journey: applying for leave to appeal our case concerning the constitutionality of the first-past-the-post voting system to the Supreme Court of Canada.

Essentially, the question we are asking of the courts is whether the current voting system respects the equality guarantees laid out in Canada's Charter of Rights and Freedoms.

That the Quebec Superior Court and the Quebec Court of Appeal did not grant our motion to have the articles of Quebec's Electoral Act that stipulate the use of the first-past-the-post method declared null and void did not come as any surprise. After all, Quebec still hasn't signed the the constitution circa 1982, which establishes the Charter.

Our expert testimony that provides both mathematical and empirical evidence demonstrating the systemic discrimination inherent to the system is barely mentioned in either decision. In the first instance, the judge wrongfully dismissed our case saying that the question was essentially political, and in the second instance the appellate court concluded that although our case was indeed judicable, such egregious democratic anomalies like a political party that received nearly a million votes but was denied representation and political parties that received less votes than another but still went on to form a majority government were not sufficient grounds to demonstrate that first-past-the-post impinged upon citizens's rights to effective representation.

Comments like that blow my mind.

In trying to wrap my mind around such outrageous statements, I can only come up with three explanations. The first is that the Quebec Appeal Court decided to evacuate any democratic norms from the notion of effective representation: being able to cast a vote, become a candidate, and being represented by a deputy is all that is required for representation to be effective. That the result of the electoral process is undemocratic does not matter. The second is that the since the Court didn't understand the nature of the question that was being asked, it consequently opted for the default option and denied the motion. The third is that judges acted upon the notion is that they are there to ensure the continuity of the state as it presently exists and will therefore not grant a motion that would effectively cause a significant rupture with the past.

All three scenarios give us grounds for an appeal.

In the first instance, the application of the Charter is guided by the values belonging to a free and democratic society and not a society that is free from the constraints that democracy imposes. In the second, it appears that it is only at the Supreme Court of Canada that we find the human resources and intellectual rigor to properly render an informed judgment on what is a fundamental question concerning Canada's system of governance. Finally, in the third, it is the primary role of the Court to uphold the rights protected by the Charter not to uphold a government's right to continue an electoral practice that contravenes each citizen's right to participate in a democratic election.

So we now arrive at a moment of truth, a moment that speaks volumes about how this nation-state is constituted.

For the Supreme Court to hear our appeal demonstrates a commitment to the values of a free and democratic society.

For the Supreme Court to decide not to hear our appeal would be an instance of dismissive silence that demonstrates that Canada has not yet evolved from its colonial past as an English settler state.

Our appeal will be filed before November 14, 2011.

There's Something Rotten in the Province of Quebec

This week was a remarkable week. On two levels, I witnessed now badly the situation has unfortunately deteriorated in la belle province.

I am of the opinion that under the guidance of Premier Jean Charest, Quebec has devolved into a kleptocracy and Charest has become a modern day despot exercising his control over the entire state including the judiciary.

Early in week, the report leaked to the press from the Quebec Government's anti collusion squad was damming. It went as far as to say that some functions of the state had been overtaken by a consortium of public servants working for the Ministry of Transportation, engineering firms, and the criminal element, supported by a clandestine financing of Quebec's major political parties in the way of kickbacks which arise from charging overinflated prices for construction projects and a portion of which eventually reach their way to the political party in power.

In other words, everybody in the consortium is taking a cut while the taxpayer is being ripped off for the replacement of the crumbling infrastructure at a cost that is 40% higher than the rest of Canada and is of lower quality. It goes as far as having the Ministry of Transport contracting out to the private sector to do the required inspection and supervision of the construction performed by the private sector firms. The report details how the consortium will arrange to charge the government for 1000 truckloads of contaminated earth to be removed when in reality it takes only 100 truckloads to perform the task.

No wonder the Quebec Government announced in the same week a 800 million reduction in budget expenditures, including funding for Health and Education. Faced with a mountain of debt, the Quebec Government has to find some way to keep the infernal money machine operating.

Incredibly, when Premier Charest faced the media, had the audacity to say that it was thanks to the determined efforts of his government that we have become aware at how corrupt it has become. He went as far as too say that he hadn't even read the report. Imagine going in front of the nation without having read the document leaked to the press and is available on the Internet that asserts that your government is the most corrupt in living memory.

Yet, Charest has something up his sleeve that most Quebecers are only vaguely aware of despite the recent public hearings of the Bastarache Commission that investigated irregularities in appointing judges to the bench.

During his press conference, Charest would keep coming back to the point that we live by the rule of law, evidence must be obtained, and that the government is determined to prosecute those who have engaged in illegal activities.

What is left unsaid is that Charest and his Liberal cronies effectively control the legal system. They decide where and how legal resources will be deployed concerning who is targeted for investigation and who will be charged. Moreover, they have put in place many of the judges who preside over the trials and more importantly the judges that decide which of their peers will hear which cases. In short, the fix is on as we should expect when candidates applying for positions on the bench have their resumes forwarded to Premier Charest with post-it notes that indicate whether they have supported the Quebec Liberal Party in the past.

At a personal level, I have first hand experience with how political power controls the judiciary. As any reader of my Taking On The System blog would know, we have filed a motion to have the first-past-the-post electoral system declared unconstitutional.

This week we received the decision from Quebec's Court of Appeal that I would liken to the insult to their intelligence that Quebecers felt when their Premier appeared before them to defend himself from the accusations from a report that he commissioned but couldn't be bothered to read.

Not surprisingly, the decision did not support our motion to have the electoral system declared unconstitutional. After all, for better or for worse, the first-past-the-post voting system distorts the popular vote to give dictatorial control of the government to the leader of the party that wins the most seats. The political power that the Premier enjoys results from a manipulation in the manner the votes cast are transformed into seats in the legislature and that power is used to appoint judges. Simply put, judges are human and they are not going to bite the hand that feeds them.

Intellectually, I understand the systemic bias that protects the status quo, but what I didn't expect is a decision that would make Kafka laugh in the way it was rendered.

In rendering his decision, Judge Dufresne did toss us a crumb in asserting that the lower court judge had erred when saying our case wasn't judicable. Wow! This question had already been addressed when Quebec's Attorney General tried and failed to have our case declared inadmissible at an earlier instance in the proceedings. Moreover, even a cursory reading of the jurisprudence would indicate that the Court is obliged to hear a case when reasonable doubt on the constitutionality of electoral practices has been produced.

However, when it came to the real question that was put forward, it was as if the three judges put their hands over their ears and started singing and uttering the phrase, "we can't hear you".

In our case, the judge accepted what was obvious, the first-past-the-post voting system distorts the popular vote, but declared that this in itself wasn't sufficient to grant our motion since all voting systems produce distortions.

Well then what about the scale of the distortions and the manner in which they are produced? We have provided expert testimony that demonstrates that the level of distortion is beyond that of the distortions caused by other electoral practices and were subsequently declared unconstitutional and that the manner in which it is done is unclear violation of the equality guarantees of the Charter.

No matter. We won't give that evidence proper consideration. In the lower court decision not a word was devoted to our most compelling evidence in the analysis and the Appeal Court Judges decided that this slight of hand did not constitute a judicial error.

Excuse my language but "What the Fuck!"

Again, I would accept the decision if it were demonstrated that we had erred in claiming that the fact that first-past-the-post denied representation to as many as a million voters that voted for the Greens in the 2008 federal election was an infringement of their democratic rights guaranteed by the Canadian Charter of Rights and Freedoms.

But this was not done. They simply dodged this inconvenient fact with dismissive silence concerning how such an electoral anomaly could be countenanced. To date, the contestable prejudice caused to those who have their votes discarded by an electoral system that is unique in that it doesn't possess a mechanism to aggregate votes or voting preferences has not been addressed and thus gives us grounds for an appeal.

Moreover, Judge Dufresne went on to make two outlandish statements that suggest that he doesn't understand or chooses not to understand the fundamental democratic principles upon which the case is founded.

The first was to suggest that the fact that the reversal of the democratic result of the Quebec 1966 and 1998 general elections (the party that won less votes than another went on to form a majority government) and the fact that almost a million voters who voted Green did not gain any representation in the 2008 federal election did not constitute a grave injustice. At the same time, Judge Dufresne uses a statistical outlier, a once-in-a-hundred year electoral result from the 2007 Quebec General Election (the three major parties gained more or less representation proportional to the popular vote) to demonstrate that the distortions inherent to first-past-the-post are not systemic yet ignored that two smaller parties that together garnered 7% of the vote were denied any representation at all.

He then suggests that the most recent federal election in which the Conservatives form a majority government with only 39% of the popular vote and in Quebec the Bloc is reduced only 4 out of 75 seats despite amassing 25% of the popular vote while the the NDP gains 70% of the seats with only approximately 40% of the vote is evidence to the contrary. In making such a claim, Judge Dufresne is suggesting that black is white for in no way do these electoral results conform to the principles of democracy, in particular that each and every vote carries equal weight.

One has to wonder what is the frame of reference being used to apply the concept of effective representation for each and every citizen. Do the egalitarian values inherent to democracy enter the equation? Apparently not in Quebec at this time.

Clearly, an appeal grounded on democratic principles would go nowhere in Charest's Quebec because to grant our appeal would upset the very power base that political parties rely upon to gain absolute control of the state and their subsequent ability to redirect a large portion of the collective wealth into private hands. Too many people profit handsomely from this dysfunctional form of governance to let it be replaced with a democratic electoral system.

In order to seek justice, we will need to have our case heard in a different political context, which we hope to find in having our appeal heard at the Supreme Court of Canada.

No News Is Good News

It's been more five months since our appeal was heard and the decision has yet to be rendered. I take this to be good news since it means that our arguments weren't simply dismissed outright as was the case in our unfavorable decision at the Quebec Superior Court.

As a result, I expect a substantive decision that will either declare the present electoral system unconstitutional or square the use of first-past-the-post with democratic principles. In the latter case, this could turn out to a Herculean task since the right for each citizen to have an effective voice in the legislature runs contrary to the systemic elimination of voices that a winner-take-all, plurality voting system entails.

Of course, we would prefer that the Court upholds our appeal, but if not, I am quite confident that any attempt to square the circle will give us sufficient grounds to have our appeal heard at the Supreme Court.

Add Bill 19 as Another Reason Why the Court Should Intervene in the Quebec Charter Challenge of First-Past-The-Post

Last week, the Charest-led Liberal Government introduced Bill 19 in order to have an electoral map in place for the next Quebec general election, which is due to be held within the next two years.

The problem is that the proposed map does not address the fundamental flaw of the existing map that there are a number of rural tidings that do not respect the constitutional requirement with respect to the relative number of electors per riding, no more than a 25% deviation from the provincial average.

Previously, the Director General Elections had drawn up a new map that would respect this constitutional requirement by adding three new electoral districts to the more populous regions outside of Montreal and by removing three electoral districts in the sparsely populated outlying regions.

Unhappy with the fact that the Director of Elections would not comply with Charest's wishes to ignore the constitutionality of a new electoral map, the Premier decided to suspend the powers of the Director even before getting the necessary legislation adopted in the National Assembly.

He then introduced Bill 19, which essentially adds the three new ridings without removing the three targeted ridings. The problem of the inequality of voting power between rural and urban ridings remains: there are a number of urban ridings that have twice the number of electors than their rural counterparts. Consequently, the vote of a citizen in a riding that was targeted to be removed is worth twice the vote of a citizen who casts his vote in a more populated riding.

At the heart of the issue is the inability of the first-past-the-past voting system to accommodate demographic trends in Quebec. People are leaving the outlying regions to live in the more populated urban centers. As well, immigrants also choose overwhelming to do the same. Inevitably, if single member districts are to be used something has to give, and if a change to multimember electoral changes is not implemented, the outlying regions will bear the brunt of the redistribution.

Given the choice of respecting the fundamental democratic principle of the equality of vote or keeping in place an institutional practice that does not have the capacity to adapt to Quebec's demographic reality, Charest is clearly clinging to the outdated voting system that allows him to form a majority government with the support of only a minority of the electorate. Clearly, Charest's desire for political power overrides his responsibility to put and keep in place a democratic electoral system.

Although the question now before the Quebec Appeal Court is larger, the constitutionality of using single member electoral districts in conjunction with a plurality method to determine representation, by striking down the first-past-the-post system the Court would prevent the Charest government from adopting what is without question the most discriminatory electoral map in North America.