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In fact, previous governments at the provincial level have already implemented (and rescinded) proportional voting with no constitutional problems.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

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.