Should the Charter Challenge for Fair Voting be worried about the Supreme Court 2014 ruling on Senate Reform?

This question was precipitated when an audience member asked a peripheral question about the Charter Challenge for Fair Voting  at a Dec 11, 2022 Fair Vote Canada webinar in which the main topic was Dennis Pilon presenting his new paper called, “Myths, Damn Myths, And Voting System Change (Download PDF of his paper at this link).

(By the way, Pilon’s paper is fantastic, but it's not the topic of this post.)

At the 44 minute point (see link to recording) a member of the audience asked Pilon what he thought of the Charter Challenge for Fair Voting.

Here's part of his response: “…[the Supreme Court] said that Stephen Harper couldn't change the basis of appointing Senators because the Senate was part of what they called the constitutional architecture of the country.  The risk here is that they may say the same thing about the voting system.”

“Risk” is always a matter of degree. I’m not saying that there’s zero risk, but I wanted to be fair to the Charter Challenge, and so here I take a deeper dive into the degree of “risk” which Pilon mentioned.

Here’s a quote from the Supreme Court ruling in which they mention the “architecture” that Pilon referred to:
“We conclude that introducing a process of consultative elections for the nomination of senators would change our Constitution’s architecture, by endowing senators with a popular mandate which is inconsistent with the Senate’s role as a complementary legislative chamber of sober second thought,” “This would constitute an amendment to the Constitution of Canada in relation to the method of selecting senators.” 

New mandates versus pre-existing rights:

Newly endowing a legislative chamber with a new popular mandate is qualitatively different from simply taking steps to ensure that all Canadian citizens can exercise their pre-existing rights to effective representation and equal treatment.

Here’s how these two are different:
In the first case, the entire Senate would be given a popular mandate which was not pre-existing. On the other hand, an improvement to the electoral system would simply ensure that a pre-existing right to effective representation that did previously belong to all voters would then finally simply be implemented in a more effective way that treats all citizens more equally.

In fact, previous governments at the provincial level have already implemented (and rescinded) proportional voting with no constitutional problems.

The 2014 Senate Reform Case wasn’t a Charter Challenge:

The Senate reform case dealt with the “Procedure for Amending Constitution of Canada” section of the Constitution Act, 1982 (section 44), but not the Canadian Charter of Rights and Freedoms (sections 1-34). (See links here and here)
 
In order to be successful, a Charter Challenge doesn’t have to amend the Constitution. A Charter Challenge simply asks the courts to interpret and enforce the Charter, which is, itself, already part of our Constitution. There have already been several successful examples (See link).

Does federal electoral reform require substantial provincial input?

To reform the Senate, our constitution does stipulate that we need “substantial provincial input” (See MacFarlane’s article)

But our Charter Challenge for Fair Voting is different: It’s an effort to change the electoral system at the federal level which does not require that “substantial provincial input.”

The constitution does stipulate that each province get a certain number of seats in a federal election but there are models of electoral systems which detour around that constitutional quagmire obstacle: See Wilf Day’s blog post entitled, “With proportional representation, will my region lose representation?”  Day begins his article by recognizing the constitutional parameters.

Conclusion: 

Should the Charter Challenge for Fair Voting be worried about the Supreme Court 2014 ruling on Senate Reform?

Worry is a matter of degree, just like risk is. When answering that question for yourself you need to simultaneously ask, “What are the risks of the alternatives? Are they greater, less, or the same?”

Here’s my own answer: I know I’m taking a risk when I donate to the Charter Challenge, but the risk is calculated and studied. Hopefully after studying this blog post I’ve made you feel more knowledgeable and more confident about investing in the Charter Challenge for Fair Voting.

About the alternatives: I think it’s wise to water all the plants, in case one yields less fruit, or yields fruit a lot slower than the other. But that’s a topic for another blog post.

Canada’s Charter Challenge for Fair Voting and the Urgent Climate Clock

Even though I believe that Canada’s grassroots supported Charter Challenge for Fair Voting will not be able to improve our democracy fast enough to prevent Canada from inflicting a high degree of climate devastation I still strongly believe that it’s still necessary for the long term.

Regardless of whether or not there is a livable, or partially livable, climate future to look forward to, we still have to prepare for the possibility of there being a livable, or partially livable, future.

Let’s face it: There’s a strong possibility that it’s likely to be a badly damaged future with much suffering, many dead, and much sorrow. But even if we can’t save everything, we need to save as much as we can.

The New Normal: A Changed Eaarth

In 2010, Bill McKibben wrote a book entitled, Eaarth, Making a Life on a Tough New Planet. He points out that we have already set in motion the physical process that will change our “Earth” into “Eaarth,” a planet that is qualitatively different than the one we know now. The subtitle implies that we must make the best of life, given these circumstances. The back cover of the book reads as follows: “…our hope depends on building the kinds of societies and economies that can hunker down, concentrate on the essentials, and create the type of community that will allow us to weather trouble on a planet suddenly and violently out of balance.”

Here’s an excerpt from his last paragraph (p 212): “The momentum of the heating, and the momentum of the economy that powers it, can’t be turned off quickly enough to prevent hideous damage. But we will keep fighting, in the hope that we can limit that damage. And in the process, with many others fighting similar battles, we’ll help build the architecture for the world that comes next…”

Canada’s grassroots supported Charter Challenge for Fair Voting is an essential part of trying to build that “architecture”:

I believe that a better democracy will result in better climate policy. That’s why I’m involved in Canada’s grassroots supported Charter Challenge for Fair Voting.

Nevertheless, our court date of Sept 25, 2023 is not soon enough to change our undemocratic electoral system by the 2025 federal election.

How does that legal time frame fit with the urgent climate clock?

Regardless of how bad the physical effects of climate change that are set into unstoppable motion we must nevertheless also set into motion the legal proceedings that lead to a relatively better democracy that can improve or ameliorate the situation that that future brings.

Foresight and Hindsight: The best time to plant a tree is 20 years ago:

Here’s an analogy: In Manitoba, a Red River Floodway, meant to divert excessive spring floodwaters around the city of Winnipeg, was started in 1962 and completed in 1968. Building it took years and was very expensive, but the demand for it finally became absolutely necessary when a flood of unprecedented proportions happened in 1997. It was three decades later that everyone was glad that it had been built.

Analogies are never perfect, but the story of the foresight and preparatory work of the Red River Floodway speaks to the story of the foresight and preparatory work of the Charter Challenge for Fair Voting:

It will take time to establish an improved democracy, but it’s likely that an increased demand for that improved democracy will likely become apparent by the physical effects of climate change in the next several years. It’s likely that an improved democracy will then speed up a government response to the suddenly increased demand for action on climate that is expected in the coming years.

Making  a Silent Majority into an Effective Majority

When I mention a “sped up” government response, I’m referring to this:

A critical mass of people who recognize the dangers of climate change is already forming today. But translating that critical mass of the public into government action is difficult with our current disproportional electoral system. That critical mass is not being proportionately represented in our governments. In other words, our disproportional electoral system continually transforms a majority voice for the environment into a silenced majority voice for the environment.

The dangers of such an electoral system are magnified by the urgency of the climate crisis.

With the future proportional representation of the people, then it’s likely that the govt’s habit of disproportionately listening to oil lobbyists will be improved, relatively speaking, from what it is now.

Of course we need a change in the Lobby Act, and many other necessary ingredients. But proportional representation is at least one of those necessary ingredients.

Timeline scenarios for Charter Challenge

The grassroots supported CharterChallenge for Fair Voting finally won its day in court: Sep 25, 2023.

However, this doesn’t leave enough time for a new electoral system to be implemented by the next federal election, which is Oct 20, 2025 (1)

Here’s one possible timeline scenario showing the various blocks of time required for each step:

First: Time between Sept 2023 Hearing and Judgement = 5 mos? (2)

Second: an appeal of that initial decision. If the initial decision is in our favour, we expect the government lawyers to appeal it. If the decision is not in our favour, we will ask our lawyers to appeal it. The appeal will then be heard in a provincial court of appeal.

Third: Whichever side is unhappy with the appeal court’s decision will then seek leave from the Supreme Court of Canada to appeal the case. The Supreme Court of Canada will first decide whether to hear the case at all. If they choose to hear the case, we'll be given a date to argue our case. 

When the Supreme Court reaches a decision, it’s final. If the case is not granted leave, whatever decision was made by the appeal court will stand as law.

According to the Supreme Court, “The Court’s decision whether to grant leave to appeal is based on its assessment of the public importance of the legal issues raised in the case in question.”

When applying for leave, we hope to be able to point to the large number of supporters who have made the case possible with small donations as one way of demonstrating the public importance of the case. More importantly, we need your financial support in order to bring the case to court at all. You can support the case here: https://www.charterchallenge.ca/donate

Fourth: If the Supreme Court rules in our favour, then time is needed for the government to act on a declaration that First Past the Post is unconstitutional. The Charter Challenge for Fair Voting is asking for a two year "suspension." (3)

Fifth: The Electoral Officer’s required time for logistics and voters to learn new system before voting = 2 years (4)

Total: When you add up these blocks of time, you get well over four years (definitely beyond 2027) because of the wild card of how long the appeal takes.

But here’s a card that’s not so wild: Such a precedent set at the federal level will almost certainly affect the future of all provincial electoral systems.

See addendum below footnotes.

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Footnotes:

Footnote 1: Fixed election date

Quote: “the maximum duration of a parliament by ensuring that it ends no later than October of the fourth calendar year after its commencement, while leaving the possibility of an earlier end unaffected.” https://en.wikipedia.org/wiki/Fixed_election_dates_in_Canada#Federal

Date of Oct 20, 2025: https://en.wikipedia.org/wiki/Fixed_election_dates_in_Canada#Next_elections

Footnote 2: Time between Hearing and Judgement

Past record shows:

2 months in case of same-sex marriage:

https://en.wikipedia.org/wiki/Reference_Re_Same-Sex_Marriage  

4 months in R v Morgentaler

https://en.wikipedia.org/wiki/R_v_Morgentaler  

5 months in Vriend v Alberta

https://en.wikipedia.org/wiki/Vriend_v_Alberta

Footnote 3: Time for the government to act on a declaration that First Past the Post is unconstitutional: Two years:

The Factum submitted on June 16 2023, in Part IV: Order Sought, paragraph 93, states: "Because election laws based on the principle of proportional representation vary considerably in their structure and design, this Court should suspend the operation of its ruling for a period of two years, to give Parliament sufficient time to study the available alternatives."

Footnote 4:

Star article from July 8, 2016: Chief electoral officer warns time running out on overhauling system: Paul Wells.

Quote from article: ““We need at least two years,” Mayrand said”

https://www.thestar.com/news/canada/2016/07/08/chief-electoral-officer-warns-time-running-out-on-overhauling-system-paul-wells.html

Addendum:

Question: How long does a Charter Challenge take?

Answer: It varies: In one example, Carter vs AG (Carter v Canada) it took approx 5 years between the filing of the lawsuit and a new law receiving Royal Assent. Here’s the chronology:

April 2011: The BCCLA had filed the lawsuit.
June 2012: Supreme Court of BC ruled in favour of the BCCLA.
Oct 2013: Court of Appeal for BC overturned that ruling.
Feb 2015: Supreme Court decision

Time for the government to develop a new law = 1.5 yrs
June 2016: A final vote was held in the House of Commons on a new law, and it received Royal Assent the same day. 

The time period between the ruling of the first court to a new law receiving Royal Assent was four years (June 2012 to June 2016).

But for the Charter Challenge for Fair Voting, the time for the government to develop a new law will be 2 years instead of 1.5 yrs., which changes that 4 yr estimate into a 4.5 year estimate.

It’s impossible to make an exact comparison between one case and another so what you see below is a rather haphazard and arbitrary exercise in speculation: 

The Charter Challenge for Fair Voting has its first hearing in Sep 2023.

If we expect a ruling from the first court in early 2024, then 4.5 yrs after that is late 2028. 

If it takes another 2 years for the electoral officer to implement a new electoral system then that would take us to late 2030. 

But in the unlikely event that an electoral officer can implement a new system in only one year, then it may or may not be ready for a possible Oct 2029 federal election – if, in fact, there even is an election in 2029, as we see below:

Election dates can vary: An election is scheduled for 2025. Four years after that is 2029. But minority governments often only last approx two years.

Considering how precedents affect future cases, it’s probably not impossible that a favourable Supreme Court ruling about the federal electoral system could affect a provincial election even before it affects a federal election.
 

 

A Shared Commitment to Fairness: Fair Vote Canada and the Charter Challenge for Fair Voting

Fair Vote Canada tweet, Feb 17, 2017

 

The first sentence of the Fair Vote Canada Statement of Purpose, adopted by its members on August 21, 2009, speaks of “the right of each citizen to equal treatment under election laws and equal representation in legislatures.” (1)

“Equal treatment,” being guaranteed in the Canadian Charter under Section 15, is also one of the two main pillars of the Charter Challenge for Fair Voting, which had its fundraising beginnings in 2017.

Thus, “equal treatment” is a common goal for both Fair Vote Canada and the Charter Challenge for Fair Voting. This common foundation speaks to their shared commitment to fairness, and their shared “statement of purpose” which guides them both.

In 2012, some in Fair Vote Canada were hesitant to launch a Charter Challenge

In April 2012, five years before today’s Charter Challenge was officially born, I was at a Fair Vote Canada AGM in Toronto when someone asked, “Why don’t we start a Charter challenge?” One person’s answer was that we feared that a negative judgement in the courts would create a permanent barrier to reaching our goal through political processes.

But with further investigation, those fears were calmed substantially for me – especially later in 2019, when Nicolas Rouleau, the appellate and constitutional lawyer now working on the Charter Challenge for Fair Voting, indicated that the “worst case scenario” would most likely not be what we had feared, but instead a “partial victory” which would likely still substantially help to advance a future case. Rouleau described a partial victory as being further guidance from the courts as to what evidence the judge was seeking (2).

2017: How We in the Fair Vote Movement Came to Weigh Our Options Anew

As history would have it, the act of comparing “worst case scenarios” encountered a twist in the plot when, in 2017, Trudeau abandoned his promise to end the First Past The Post electoral system. At that point, all of us in the fair vote movement had to do a rethink and weigh our options anew. History shows us that since Trudeau was not the first person to abandon such a promise, he will likely not be the last. In 1926, MacKenzie King also abandoned his original interest in the issue.(3)

Trudeau's abandoned promise made it clear that we needed to use more than just political attempts to get to our goal of fair voting: We needed to also include an additional strategy that involved the independence of the courts --to add impetus to our efforts, given the inherent tendencies of politicians.(3)

It was in that 2017 context that the fundraising of the Charter Challenge project came together.(4)

It’s important to note that Fair Voting BC initiated the Charter Challenge with Réal Lavergne, the former President of Fair Vote Canada, on the advisory board during initial stages of the project. (5)

The Ongoing Complimentary efforts of Fair Vote Canada and the Charter Challenge

Nowadays, if I mention the Charter Challenge case to some people, and they seem uneducated about the topic of proportional representation in general, I then give them both of our links: one link to our Fair Vote Canada site, and one to our Charter Challenge site.

I give them both links because Fair Vote Canada has always done a stellar job at educating people who are at any level of knowledge of fair voting; and this educational expertise and experience can be very helpful for those who want to learn about any and all avenues to “the right of each citizen to equal treatment under election laws and equal representation in legislatures.”

Those Complimentary Efforts would continue to be needed after a "Best Case Scenario" Win by the Charter Challenge:

If the Charter Challenge for Fair Voting wins more than just a partial victory and gets the court to make a declaration that First Past the Post is unconstitutional, then at that point there would again be a need for the Charter Challenge to continue to work in tandem with Fair Vote Canada’s capacity to educate the public. Here’s why:

If the courts order the government to change our electoral system, the government would, in the words of Nicolas Rouleau, “craft a system based on public response (...and hopefully [after our arguments]…it's in a straight jacket and can't justify any system beyond proportional representation…).”(6)

When “public response” is again involved, this is where Fair Vote Canada’s proven expertise and capacity to educate the public will again play a huge role in getting the best outcome possible.

Those Complimentary Efforts would continue to be needed after a "Partial Win" by the Charter Challenge:

One type of “partial victory” is where we get a ruling that says, “There has been a breach of the Charter, but the government now has an opportunity to justify the breach.” (7)

At that point the burden of proof is on the government to show why they are justified in the breach.

After that we have to show that the government rationale for justification is insufficient.

It’s important to note that the government arguments will be subject to public scrutiny. This will put added pressure on the government to have strong arguments.

It would make the government look bad from a public perspective or a “public narrative” if they said, “We don’t care if this individual voter’s rights have been infringed upon.” (8) 

Public scrutiny is more powerful if the public is better educated on electoral systems in general. That is where Fair Vote Canada can play an vital role with its proven capacity to educate the public.

Could the Charter Challenge for Fair Voting work in Tandem with a Citizens’ Assembly on Electoral Reform?

Réal Lavergne, former President of Fair Vote Canada, presented that possibility on Feb 16, 2023 with this quote:

“And we’re hoping that the Supreme Court will pronounce itself on that and hopefully that the Supreme Court will say you have to find a way to hand this over to citizens and the Citizens’ Assembly would be one way to do it.” (9)

If this tandem relationship materializes, then it makes a lot of sense for Fair Vote Canada to push for a Citizens’ Assembly on Electoral Reform exactly at the same time as the Charter Challenge for Fair Voting pushes for a victory in the courts. 

Learn more in Part 2 of "A Shared Commitment to Fairness: Fair Vote Canada and the Charter Challenge for Fair Voting": Click here

Footnotes:

Footnote 1: At the Fair Vote Canada site, hover over “About Us” and choose “Statement of Purpose” (PDF) 

Footnote 2: See 39:00 in video entitled, “Charter Challenge for Fair Voting Webinar - December 16 2019” found at this link. Especially see 42:15

Footnote 3: See Lawrence LeDuc’s affidavit in the Charter Challenge case at this link. (PDF)
 
LeDuc argues that there is an inherent conflict of interest which causes politicians to abandon this interest after gaining office. “Opposition parties often express support for reforms while they are in opposition, then lose interest in the same ideas when they are in government. Furthermore, the political success of parties in power tends to be closely tied to the electoral system that enabled it.” (page 25, point 50)

Footnote 4:
On February 1, 2017, the newly appointed Minister of Democratic Institutions Karina Gould announced that the government was no longer pursuing electoral reform (despite having promised it in the 2015 election).  See link.  In less than a month a trial balloon email was sent out as a request for pledges to initiate a Charter Challenge. It was a success.

Footnote 5  See Charter Challenge Team / Advisory board at this link.  

Footnote 6:
See 59:16 in the Voices from the Movement video (May 2022) at this link.

Footnote 7: See Charter Challenge for Fair Voting Webinar - December 16 2019 at this link. See 39:00. Especially see 43:21

Footnote 8:  See Charter Challenge for Fair Voting Webinar - December 16 2019 at this link. See 42:15

Footnote 9: Réal Lavergne’s quote is found here: “Advancing Proportional Representation in Canada” Stephan Kyburz interviews Réal Lavergne in this Feb 16, 2023 episode of “Rules of The Game: Discussing Democratic Institutions” Blog/Podcast  See this link

Lavergne mentions that interview on his Facebook page Feb 16, 2023 (See this link): Here I paraphrase his comments further in that Facebook thread:

It would be valuable if we could get the courts to say that it was largely politics and partisan interests that have prevented the adoption of electoral reform. If the courts say that then that would be a reason for them NOT to give the decision on electoral reform to the government in power.

If the courts do rule that the existing electoral system needs to be overhauled, then to develop a new system… “some sort of independent process is required and there needs to be a way to ensure that independence, based on multi-party or all-party support.” “So, [it should be] either a Citizens Assembly or some other form of citizen-based process that is unassailable.”
 
 

How the Charter Challenge for Fair Voting case differs from the 2012 Gibb vs Quebec case

 

In the months leading up to the Judgement of April 26, 2012, a case called Gibb vs Quebec challenged our electoral system using the Charter of Rights section 3 and 15, the same sections we are using for the "Charter Challenge for Fair Voting" case. The links to that 2012 case are here and here

How is our court challenge different?

Nicolas Rouleau (an appellate and constitutional lawyer) answers that question in the following selected excerpts from a video entitled, “Charter Challenge for Fair Voting Webinar - December 16 2019” found at this link.

First: We are looking to provide more evidence: There's much more of a realisation today than there was even 10 or 15 years ago about the problems particularly with respect to minorities not getting a voice under First-Past-The-Post system than under other systems.

Second: The previous case was focused a lot more on parties rather than voters. The Supreme Court tells us you're expected to have some kind of representation that comes out of your vote. What we’re saying is -- at the individual level-- a voter who votes for a candidate who doesn't get elected, effectively doesn't really get much representation. And there's empirical evidence to that effect.

Third: on the section 15 argument [equal treatment]: The argument in the previous case was that [our electoral system] discriminated against people on the basis of territorial representation. [However] what we’re arguing is [that because of our electoral system] the discrimination is based on race, or ethnicity, on sex, on political opinion and belief. And these are all things that courts in the past have stated are protected by the Charter. 

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The above are only selected excerpts, but the below is the….
Full Youtube transcript (after I cleaned it up a bit):
For verification:
Press “Show More” to see a table of contents with links that you can jump to at certain points in the video. Our excerpt is from 34:15.
To see the Youtube transcript, press the three dots at the bottom right of the video and choose “show transcript.”

How is our court challenge different from previous cases like this?

Nicolas Rouleau answers with the following quotes:

 
Good question. Obviously there are lots of intricacies… lots of different legal arguments…but I think the differences can really be summed up in three ways:

…Just as a background: Often the first cases on an issue are not devoid of evidence but are sort of lacking in evidence because the courts haven't yet spoken about what evidence is relevant to these types of cases.  So the first lawyers who take on these cases are sort of in a bit of a vacuum as far as what evidence to present to the court to convince them that there's a breach.

Section 3, in particular, hasn't really been argued very often in court: There's probably (and don't quote me on this) but there are probably about 10 to 12 cases or so that have really been argued on this topic [ever]. So it's a pretty infrequently argued provision. Compare that to section 7 of the Charter (the right to life liberty and security of person) where there might be 12 cases a month in Canada on that issue.

So we're really not looking at a case where there were lots of precedents to look at.

So the first point where we're different [from previous cases] is we've been able to put forward a lot more evidence -- or we're looking to put forward lots more evidence.

 
Part of the reason for that is we've got more courts who have spoken about this, including the court on the Gibbs case, and it's given us paths or directions that we can take to provide more evidence so we think we're going to have much more evidence.

Also the field has evolved since then, and I think there's much more of a realisation today than there was even 10 or 15 years ago about the problems particularly with respect to minorities not getting a voice under First-Past-The-Post system than under other systems as we've seen more countries in the world adopt these various modes of electoral representation rather than First-Past-The-Post.

So the first issue would be much more evidence in our case.

The second issue would be that the previous case was focused a lot more on parties rather than voters.

 
[The previous case used] parties as proxies for voters but [it really argued that] the unfairness was really with respect to parties: [For example, a given] party got X percentage of the vote but didn't get X percent of candidates.  

[However, in our case] we’re focused a lot more on the individual -- ie. the individual voter-- in terms of their experience going through this. So as a voter you expect you vote for someone, and the Supreme Court tells us you're expected to have some kind of representation that comes out of your vote. What we’re saying is -- at the individual level-- a voter who votes for a candidate who doesn't get elected, effectively doesn't really get much representation. And there's empirical evidence to that effect.

So, again, the focus is really a lot more on voters than on parties.

The third point is on the section 15 argument [equal treatment]:

 
It's really a completely different argument [than the previous case]. The argument in the previous case was that [our electoral system] discriminated against people on the basis of territorial representation:  [It argued that] the voters in Greater Montreal were treated differently than other voters. Part of the issue there was that the Charter doesn’t protect against discrimination on the grounds of territory of residence.

[However] what we’re arguing is [that because of our electoral system] the discrimination is based on race, or ethnicity, on sex, on political opinion and belief. And these are all things that courts in the past have stated are protected by the Charter. So it's a bit of an easier argument in that sense.

End quote from Nicolas Rouleau

How to join Make Votes Equal, an endorser of Fair Vote Canada and the Charter Challenge for Fair Voting

Visit the Charter Challenge for Fair Voting at this link 

Visit Fair Vote Canada at this link.

To join Make Votes Equal, an endorser of both, simply email makevotesequal at gmail.com

Wasted Votes – an informal, but important, phrase

In an attempt to express the shortcomings of the First Past The Post electoral system, people often use the informal phrase “wasted votes.”

The use of this informal phrase is critiqued by Christopher Kam in his blog post/comment entitled, “Logic Please.”

In this excerpt, Kam begins by quoting the phrase he then critiques:

“Under FPTP, many people’s votes don’t count / are wasted”. 

“…I can only infer from such claims that the speaker thinks that every vote cast under their preferred system will go toward electing a candidate, ergo, no votes will be cast for losers.  But here’s the thing:  Logically, we could only achieve this if we guaranteed ex ante that every candidate who ran would win.”

My analysis:

Of course there is no electoral system where “every” vote cast goes toward electing a candidate. But there are some systems that, relatively speaking, have a better record than other systems in that measure of representation.

If we use “effective representation” as a measurement then changing to an electoral system which has relatively less “wasted votes” is an improvement.

For example, the Single Transferable Vote electoral system (ranked ballot in multi-member ridings)  provides more proportionality by transferring votes to minimize “wasted” votes. Notice I used the word, “minimize,” not “eliminate.”

Of course there are more precise ways of discussing what many informally call, “wasted votes”:

On a closely related topic, a much broader analysis and exploration of using “effective representation” as a measurement of electoral systems is done by Antony Hodgson in the affidavit that he is presenting on behalf of Fair Voting BC in a Charter Challenge for Fair Voting. That affidavit entitled, “Fair Voting BC Affadavit” can be found at this link (click on “Fair Voting BC”) (PDF). 

Hodgson compares several different countries using three types of indexes (quoted from affidavit):

1. The Representation Metric (RM), which identifies the percentage of voters who are represented by an MP for whom they voted;

2. The Legislative Power Share (LPS) Score, which expresses the share of legislative voting power held by individual voters relative to a situation of parity; and

3. The Legislative Power Disparity Index (LPDI), which summarizes the integrated impact and effect of disparities in legislative power that are felt and measured at the individual voter level by the LPS score.