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.

Translating and Assessing Christopher Kam’s blog post on The Representation-Accountability Trade-Off in Electoral Systems

Christopher Kam introduces his blog post by saying it’s “mainly just a review of some literature on representation, accountability, and electoral systems.”

I greatly appreciate Kam’s effort to educate us on these important topics.

His last sentence, however, could be interpreted to be a subtle value judgement. That sentence invites further scrutiny, which is what I do at the end of this blog post.

Nevertheless, I’ll begin by attempting to translate his educational efforts into lay language. In doing so, I hope to educate those of us (myself included) who haven’t had time to read all his sources.

“Representation” happens when voters choose a representative.

“Accountability” happens when voters hold those representatives accountable by either rewarding them by re-electing them again, or by punishing them by unelecting them.

A voter often “chooses a representative” presumably because the voter thinks that they will act in a desired way in the future.

But “holding the representative accountable” presumably means that voters respond to their behavior in the past.

According to Kam, accountability is a strong feature of plurality electoral systems, such as First Past the Post; but it’s not a strong feature of proportional representation systems. Here’s his explanation quoted:

[Under plurality electoral systems, such as First Past the Post,] “a small loss of votes can result in a significant loss of seats. Voters can thus inflict significant punishment on the incumbent merely by withdrawing a few percentage points of the vote….”

“…[Whereas under proportional representation electoral systems, the following happens] …Firstly, PR tends to produce coalition governments, and where several parties control government it is more difficult for citizens to apportion credit or blame for political outcomes (Powell and Whitten 1993; Duch and Stevenson 2008).  Secondly, the relationship between votes and seats under PR is neither as steep as under plurality rule nor so determinative of government status.  This is because a party’s ideological position may grant it legislative bargaining power in excess of its seats share.  Parties in this advantaged position are thus somewhat insulated from shifts in their vote shares.”

After more discussion, Kam eventually ends with these concluding paragraphs:

“The fundamental problem in evaluating [all] electoral systems in terms of these criteria is not necessarily that there exists an unyielding trade-off between representation and accountability.

It is that we cannot reliably distinguish representative from unrepresentative electoral outcomes, either because these outcomes are products of a voting cycle or because our measures of representation are ambiguous. 

The situation is no better with regard to accountability; even if we can state that the clarity of responsibility and the capacity to sanction incumbents is better under electoral system x than under electoral system y, there is no assurance that such conditions are sufficient to motivate or constrain office-holders.

It seems that we lack reliable means to connect electoral systems to two of the key guiding principles of representative government. 

While this is a pessimistic conclusion, it should encourage citizens to carefully scrutinize politicians’ claims that some electoral systems are inherently “fairer”, “more democratic, “representative” or “effective” than others."

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My own analysis:

I appreciate Kam’s effort to educate us on these important topics. But his last sentence could be interpreted to be a subtle value judgement.

In that sentence, Kam appears to be subtly implying the following logic:

Premise: No electoral system is perfect.

Conclusion: Therefore no system is better than any other

That conclusion doesn’t follow from the premises.

Kam has shown conclusively that no system is perfect, but he has not shown that no electoral systems are inherently “fairer”, “more democratic, “representative” or “effective” than others.”

A system does not have to be shown to be perfect in order to be shown to be “fairer”, “more democratic, “representative” or “effective” than others.”

Did Kam get the “accountability” assessment correct on Proportional Representation systems versus plurality systems such as First Past The Post?

According to Kam, “accountability” is a strong feature of plurality electoral systems, such as First Past the Post (FPTP); but it’s not a strong feature of Proportional Representation (PR) systems.

First let's look at the way "accountability" is assumed to function: It's assumed that “accountability” happens when voters hold those representatives accountable by either rewarding them by re-electing them again, or by punishing them by unelecting them. But Dennis Pilon poses this question: "Is it realistic to suggest that a Conservative supporter will make their Conservative representative accountable by voting for a non-Conservative candidate?" (More arguments and evidence against the "accountability" argument can be found in Pilon's paper, "Myths, Damn Myths, and Voting System Change: How Canadian Political Scientists Misrepresent Democratic Reform" which can be downloaded from the Fall 2022 issue of Canada Watch at this link.)

Second, the evidence is not as strong as Kam proposes: Here is a quote from the affidavit that John Carey submitted in the Charter Challenge for Fair Voting, found at this link. (Download PDF)

Quote from Carey's point 55 (pg 27): "A number of well-regarded studies that measure government performance with standard economic indicators and examine how the vote shares of governing parties correspond to those indicators suggest little difference between FPTP and PR in how voters are able to attribute responsibility (Blais and Bodet 2006, Golder and Stramski 2010, Powell 2011)." (The quote continues with more evidence too long to list here.)

Jesse Hitchcock, in her blog on the website of the Charter Challenge for Fair Voting, writes about Carey's assessment (see this link): "He also argues that “despite the intuitive appeal of theory connecting FPTP to government accountability, scholarly research does not show a clear advantage,” and says that “recent research affirms that FPTP and PR are equally capable of fostering a clear link for voters between parties and responsibility for government decisions, particularly when parties are grouped into distinct policy camps and when district magnitude in PR systems is kept in the low-to-moderate range,” so he finds no support for the claim that our current system leads to more accountability than the proportional alternatives."

Carey continues in point 56 (pg 28), "...individual electoral accountability may be compromised in a district that is not competitive between parties such that there is, effectively, no chance the dominant party's standard-bearer will lose."

Also consider this quote from Antony Hodgson (found at this link): 

"it is a happy fact that most of the issues that reform opponents are ostensibly concerned about (such as accountability and stability) are in fact actually enhanced under properly representative voting systems.

For example, regarding accountability: with our current system, a significant majority of voters can oppose a local MP and still see that MP elected.  In contrast, under a voting system such as the Single Transferable Vote, in which each MP can only be elected if a seat’s worth of voters explicitly name them on their ballots, the MP must maintain the trust and support of those voters or else they could give their top preferences to other candidates (often from the same party) and so replace an underperforming MP without being forced to switch parties.  

On the flip side, a responsive and respected MP can be sure of being re-elected if they maintain the loyalty of those voters who initially elected them – voters who support other candidates or parties cannot take away from that MP’s core support."

End Quote 

I, myself, would like to expand on Carey's last point:

I, myself, would reduce the “accountability” score that Kam gives to plurality systems such as FPTP:

Under FPTP, when parties strategize about how to maximize their seats in an election, it’s likely that they will strategically put much more of their energy and dialogue with prospective voters –and therefore more of their accompanying “accountability”-- into key target battleground ridings. “Battleground” means these are ridings that they either risk losing, or have a chance of taking from another party.  

Conversely they will put less energy and dialogue with prospective voters –and therefore less of their accompanying accountability-- into the ridings where they are very confident of a win, or where they know they can’t possibly win. In these non battleground ridings, there’s less accountability to voters.

If it can be shown that there are more of those non battleground ridings under a FPTP electoral system than under PR systems then, if we use that metric alone, that’s evidence that there is less accountability under FPTP than PR.

Under PR, all ridings are battlegrounds because the final election result will draw votes from every riding. However under FPTP, and other “winner take all” electoral systems, a party can often win a seat majority by strategically directing and focusing their energy on “less than all” of the ridings.

That difference shows that there are more non battleground ridings under FPTP than under PR. If we use that metric alone then this is evidence that there is less accountability under FPTP than under PR.

Admittedly it is not correct to use that metric alone. Nevertheless that metric is missing in Kam’s assessment of proportional systems versus plurality systems.

Because of the above, in terms of “accountability,” I would give a low grade to both proportional representation systems and plurality systems.

Even if plurality systems get a slightly better grade in “accountability” (due to the rationale provided by Kam) it’s not dramatically better than PR systems (due to the rationale I provided above.)

I attempt to express this using the below table -- for illustration purposes only.

I also use that same illustrative table to express the differences between PR and plurality systems when we measure their respective performances in “representation,” as opposed to “accountability.” Kam agrees that PR outperforms plurality systems when using the measure of “representation.”

The following table, although not based on any direct data collection, is an illustration of how to express all of my above analysis:

	Proportional representation electoral system	Plurality electoral system
Representation	5	1
Accountability	1	2
Total score	6	3

 

Notice that the total score of a PR system is more than Plurality system.

This better total score is reason to favour one type of system over another.