Thanks to your contributions and the support and donations of many other Charter Challenge champions, we have reached another important milestone in our fundraising efforts. We have surpassed our $30,000 goal for the drafting of the factum (our written argument of the case). This is excellent news, and sets us up for success in the coming months! 

Here’s a reminder on the status of the case: 

• The case was filed with the Ontario Superior Court of Justice in October 2019.
• We served the government with affidavits and an evidence package in May 2021.
• Government affidavits were received in late Fall 2022 and are currently being reviewed. 
• Court date was confirmed. The case will be heard September 25 - 27, 2023.

We will have more to share next week on the government’s evidence and our current work in reviewing and preparing response evidence. 

In the meantime, we’re pleased to share that we are planning a Charter Challenge donor webinar for early 2023 with the Charter Challenge team and lawyer, Nicolas Rouleau. Stay tuned for details on this exciting event! 

As well, we are kicking off the next phase of fundraising which will be focused on raising $25,000 to cover the costs of presenting our case in court. 

Thank you for your continued support.

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

We are very excited to share that the Charter Challenge now has a court date! Our case will be heard September 25 - 27, 2023 in Toronto.

This is a critical moment for the challenge, and it would not have been possible without your support and contributions!

We still have plenty of work to do prior to the hearing dates. Evidence is expected from the government very shortly, at which point we'll review it and start preparing our reply evidence. Cross-examination will be completed in March 2023, and the factum (the written argument we provide to the courts prior to the hearing) will be filed in late Spring 2023.

Thank you again for all your support in getting us to this point. More exciting updates to come very shortly!

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

We hope you had a wonderful summer! Fall is almost here and the Charter Challenge case work will be ramping up again soon. We're pleased to share an interim update at this time and provide more details on Fair Voting BC's evidence. 

Case Update 

Charter Challenge lawyer, Nicolas Rouleau, has been in touch with the government. We are expecting them to file their response evidence by the end of the month. Once confirmed, we will send an update to all supporters on next steps. 

At this time, we do expect the current case timeline to shift with a case hearing date in 2023. As soon as details are confirmed, we'll be in touch. 

Fair Voting BC Evidence - Some Voters Are More Equal Than Others

The last two messages showed how fewer than half the voters are represented by an MP they’ve voted for and how it can take barely a quarter of the votes for a political party to win majority power.

Only a Third of Seats “In Play” in Typical Election

In the next section of the affidavit, we show that only about a third of all seats across the country are truly in play in any given election - “15% of all ridings were decided by a margin of less than 5% in 2019, and an additional 13% by a margin of under 10%. These ridings are the most likely to change hands and are commonly referred to as ‘swing’ seats or seats ‘in play’. Conversely, 32% of all ridings were decided by a margin of over 25% . These seats are considered to be relatively unlikely to change hands in a subsequent election and are commonly referred to as ‘safe’ seats.”

Histogram of margins in the 2019 federal election. Ridings where the margins are relatively low (<10%, shown in red and orange) are considered to be ‘swing’ seats, while ridings where the margins are relatively high (>20%, shown in green) are considered to be ‘safe’ seats.

Voters in Different Regions Don’t Matter Equally

This is important, because “the distribution of safe and swing seats varies across the country, affecting voters in different ways in different places,” which means that the various regions of the country don’t all matter to the same extent in an election.  In general, the outcome in races in BC are most uncertain, while those in the Prairies are essentially pre-ordained, and because the outcome in each riding is “all or nothing”, this means that the overall election results are highly sensitive to small changes in local conditions.  In effect, some voters are more “equal” (or influential) than others, which violates the democratic principle that voters should matter equally, no matter where in the country they live.  

This dynamic is the root of the well-known disproportional and occasionally highly counterintuitive election results produced by the FPTP voting system (e.g., in the 2019 election where Conservative Party candidates received 1.2% more of the vote than Liberal Party candidates, but were elected in 36 fewer ridings).

Coming up in our next message - an overview of our “Parity in Legislative Power” project in which we “analyze, quantify, and visualize existing distortions created by the Canadian electoral system in relation to the principle of “one person, one vote”, i.e., distortions in the “relative parity of voting power” of Canadian citizens.”

More to come soon! 

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

In our last post, we introduced you to the first pieces of evidence laid out in the affidavit written by Antony Hodgson (president of Fair Voting BC), in collaboration with Byron Weber Becker (University of Waterloo) and Fred Cutler (University of British Columbia), about the results of the 2019 federal election and described our key evidence that fewer than half the voters ended up voting for an elected MP (crucial for our argument that half the voters are not effectively represented).

Government MPs Typically Represent Only a Quarter of Voters

After that, our affidavit makes the additional point that, “regardless of whether a government is a majority or a minority, the MPs elected to the governing party are routinely elected by only a small minority of voters” - typically less than a quarter of them. “For example, in the 2019 federal election, the 157 MPs belonging to the Liberal Party were elected by only 3.7 million of the 17.9 million voters who participated in that election (20.8%). Even in the 2015 election, which returned a majority government, the 184 MPs belonging to the Liberal Party were elected by only 4.6 million of the 17.7 million voters who participated in that election (26.2%).”  

This evidence will let us argue that our current voting system does not respect one of the core tenets of democracy - namely, that legislative decisions should be made by representatives elected by a majority of voters. 

Thanks to Byron Weber Becker, we were able to process historical election data in Canada going back to our first election as a country in 1867.  The figure below shows that it’s been a consistent feature of Canadian elections for our entire history that MPs from the winning party are elected by only about a quarter of the voters.

Percentage of effective votes (solid shades) and ‘wasted’ votes (lighter shades) cast for the party that won the greatest number of seats in each Canadian federal election.

We have also been able to show that “the winning party’s vote share (as received by all its candidates) has historically been going down” - even when counting just the elections resulting in majority governments, where the winning party’s candidates received a vote share “averaging 44.7% in the first four elections [of the past 40 years] resulting in a majority (1980, 1984, 1988, and 1993) and decreasing to an average of 39.6% in the last four resulting in a majority (1997, 2000, 2011, and 2015).”

Canada Has Moved Away From Principle of Majority Rule: 

We concluded that, “overall, the typical result of Canadian federal elections under FPTP in recent decades is that candidates from the party that wins the most seats [only] win up to about 40% of the popular vote. Yet despite there having been only a single true majority government in the past 59 years (after the 1958 election) and despite having its MPs elected based on votes cast by little more than a quarter of the voters (typically cast in a limited portion of the country), the party winning the most seats nonetheless secures majority power in Parliament close to 70% of the time (~41 of the 59 years). This suggests that Canada has over the past few decades moved decisively away from the principle of “majority rule”.”

Stay tuned for more information! 

As a follow-up to our last communication, we are still waiting for the government affidavits. It could be a few more weeks at this point, and we'll share any new updates as soon as possible. In the meantime, we're pleased to share more information from our case evidence. 

Fair Voting BC Evidence 

Over the past number of months, we’ve walked you through the evidence put forward by the four expert witnesses we invited to submit affidavits in this case:  Profs. Nadia Urbinati (Columbia University), John Carey (Dartmouth College), Karen Bird (McMaster University) and Lawrence LeDuc (University of Toronto).

In addition to these experts, Antony Hodgson (president of Fair Voting BC and a professor at the University of British Columbia) also worked closely with some other experts (Byron Weber Becker (University of Waterloo) and Fred Cutler (University of British Columbia) to put together our own unique analyses to support our key contention that the First Past the Post voting system fails to effectively represent voters. In the coming few emails, we’ll share key insights. 

Antony Hodgson (President, Fair Voting BC & University of British Columbia), Byron Weber Becker (University of Waterloo) and Fred Cutler (University of British Columbia).

The 2019 Canadian Federal Election

The first section of our affidavit reviews the results of Canada’s 2019 election in order to illustrate in our own national context some of the key problems described by the expert witnesses.

The first thing we pointed out was that “in a strong majority of ridings in the 2019 Canadian election (215 out of 338, or 63.6% of them), the winning candidate did not win a majority of votes. Many won significantly less. In particular, two candidates were elected with less than 30% of the votes cast in their ridings.”

While this is an interesting first point for the court to consider, we went on to make an even more important and central point by stating that it is important “to distinguish between votes cast for candidates who are elected and those that are not. We define a vote cast for an elected candidate as “effective”, as such a vote affects the composition of the legislature, and one cast for a candidate who is not elected as “ineffective”, as such votes do not have any effect on the composition of the legislature. Ineffective votes are commonly referred to as “wasted votes.””

“Of the 17.9 million voters who cast votes in 2019, a majority of over 9.1 million (51.0%) cast wasted votes.” This is the main fact that we plan to rely on in making our case - over half the voters do not have an MP they have voted for, and we will argue (based on Prof. Urbinati’s evidence) that this consequence of FPTP implies that these voters are not effectively represented.

In addition, “There was a strong link between a voter’s political preferences and the likelihood of casting a wasted vote, with supporters of some parties affected to a greater extent than others. Large majorities of voters who voted for the NDP, the Green Party, the People’s Party of Canada, or for independent candidates in the last election cast a wasted vote” (as well as significant numbers of Liberal and Conservative voters - see figure below), which means that certain kinds of voters (“characterized by political preference and region”) are systematically discriminated against.  

Representation of effective votes (solid shades) and ineffective, or wasted, votes (lighter shades) cast by party in the 2019 Canadian federal election. An effective vote is one cast for a winning candidate, while a wasted vote is one cast for a losing candidate.

In upcoming messages, we’ll dive deeper into the rest of the evidence we’ve put together.

Voices from the Movement - Event Recording

A big thank you to those who attended the Voices from the Movement Session, presented by Unlock Democracy Canada. If you were unable to attend or would like to revisit, a recording of the session is available here. 

In our recent messages, we’ve shared with you much of the evidence Prof. Lawrence LeDuc  presents about the negative effects of our First Past the Post voting system.  In the final section of his affidavit, Prof. LeDuc summarizes Canada’s previous experiences with proportional voting and explains why, if it worked better than FPTP, we didn’t keep it and haven’t switched even more decisively to using it in all Canadian elections.  

Canada’s Previous Experience With Proportional Voting

While it may be surprising to some, since all provincial and federal elections now use FPTP, Prof. LeDuc notes that “Canada has not always exclusively used FPTP in single member districts in the past. We have had multimember ridings at both the federal and provincial levels, and Alberta and Manitoba used STV [the Single Transferable Vote] in provincial elections in big cities between 1920 and 1955.”

Why We Haven’t Adopted Proportional Voting

But if proportional voting was used, why haven’t we stuck with it and even expanded its use?  Prof. LeDuc points out that “in 1921, the first federal election widely contested by three political parties,” “an active debate at the federal level about FPTP began that year, and the issue has been debated more or less continually since that time.”  Indeed, a Special Committee on Proportional Representation and the Subject of the Single Transferable or Preferential Vote was convened that year, though the politicians of the day declined to follow through on its recommendation that a public plebiscite be held.

Natural Conflict of Interest

LeDuc comments that “given the natural conflict of interest of governments with respect to reforming the very electoral system that elected them, partisanship and entrenched interests have combined to keep FPTP in place,” and indeed to repeal proportional voting where it was used.  He goes on to review a number of other electoral reform initiatives at both the federal and provincial levels, noting that “because the electoral system sits at the root of partisan self interest, proposals for change were always linked in one way or another to partisan politics.”

Inconsistency

LeDuc also demonstrates politicians’ inconsistency by noting that “opposition parties often express support for reforms while they are in opposition, then lose interest in the same ideas when they are in government,” and citing Mackenzie King’s about-face in the 1920s as the first significant example.

Partisan Self-Interest

He calls further attention to politicians’ self-interest when he says that “Governments typically see proposals for institutional change either as threats to their position or as opportunities to advance a partisan agenda. In the former case, proposals that are put forward by organizations or groups outside of government are easily ignored or sidelined.”  And “when governments do decide to act on a reform proposal, they often do so from a perspective of gaining a political advantage over their opponents,” and not because of any principled commitment to the best interests of voters.

We feel that this evidence of strong self-interest and partisan self-dealing on the part of politicians will help us convince the courts that they shouldn’t automatically defer to governments on this issue and should provide appropriate direction to them.

Thank you for your continued support. More on the other affidavits coming soon!

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

We’ve recently shared with you some of Prof. Lawrence LeDuc‘s evidence that our First Past the Post voting system has deeply negative consequences for both individual voters and for the country as a whole.

FPTP Makes Unhappy Voters 

Later in his affidavit, Prof. LeDucRecent points to how important it is for voters to gain parliamentary representation when they cast their vote in an election: “experimental research demonstrates clearly that voters do care about the degree to which their votes are reflected in the distribution of parliamentary seats, and that this affects their degree of satisfaction with electoral institutions and with the perceived fairness of the political system more generally.”  He presents evidence that “only about half (54%) of Canadians … were “very satisfied” or “fairly satisfied” with “the way that democracy works in this country”,” compared with much higher levels “in Denmark (92%,) Sweden (80%), or The Netherlands (78%) – all PR countries.”  “The electoral system was among the most frequently-mentioned reasons [for their dissatisfaction] – second only to the concentration of power in the executive, which is itself a function of our FPTP electoral system,” and notes that “should Canada change to a PR system, it is likely that the level of satisfaction with the political system would increase.”

Negative Effects on Younger Voters

Prof. LeDuc’s evidence clearly supports Prof. Karen Bird’s findings (which we described recently) that FPTP leads to under-representation of women and minority groups, and adds evidence that “young voters, whose issues and concerns differ from those of older voters, ... are typically under-represented as MPs in Parliament under the existing FPTP system. This divergence has, in recent years, contributed to declining turnout among younger age groups.”

A Host of Other Negative Effects

Prof. LeDuc outlines a host of other negative effects of FPTP voting in the Canadian context: 

Low voter turnout: “Research has consistently found that one of the reasons for declining turnout in Canada is the feeling among citizens that their votes too often do not really count under the present system, or that the choices presented to them in many constituencies are inadequate.”

Strategic voting: “Canadian voters hate the idea of strategic voting – effectively being told to vote for a candidate that they don’t want in order to prevent a candidate that they like even less from being elected. Rather than encouraging participation, this configuration more often prompts withdrawal.”

Safe seats: ““Safe” seats lead to increased voter dissatisfaction and higher rates of withdrawal from voting.”  “In “swing” ridings, on the other hand, turnout tends to be higher, because voters feel that their votes matter and they have the chance to impact the election of a representative. The concepts of “safe” and “swing” ridings have no meaning under PR.”

We feel that all of these issues are highly relevant to the claim we’ll be making in our arguments that our voting system does not deliver effective representation, as required by our Charter. 

Wishing you a lovely and safe holiday season! Thanks for all of your tremendous support this past year. 

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

In our last post, we introduced you to Prof. Lawrence LeDuc (University of Toronto) and outlined his key argument that our First Past the Post voting system means that half the voters don’t receive legislative representation - at most, they get constituency service, but we claim that this is not the heart of our Charter right to effective representation.

In Prof. LeDuc’s affidavit, he describes three additional significant problems created by our current voting system that are well-known to electoral reform advocates:  false or exaggerated parliamentary majorities, systematic under-representation of political minorities, and distorted regional and provincial representation.

False Majorities:  

On false or exaggerated majorities, he notes that there have been 30 elections since 1921, which was “the first federal election seriously contested by three or more political parties.”  Of these, only three have produced “true majorities”, in which the winning party’s candidates attracted over 50% of the vote.  Fourteen resulted in “false majorities”, where a party won a majority of the seats but whose candidates attracted less than 50% of the vote, and thirteen resulted in minority governments (three of which were “wrong winner” elections, “where the party with the most votes did not gain the most seats”, including our most recent election in 2019). The problem, as he points out, is that “For more than a century, our electoral system has typically failed to deliver results that accurately reflect the will of the electorate as expressed on Election Day..”

Systematic Under-Representation of Political Minorities:

LeDuc states that another key problem is that “Canada’s FPTP electoral system favours minor parties with concentrated sectional support, and discourages those with greater but diffuse national support.”  “This has systematically benefited supporters of the separatist Bloc Québécois, while systematically penalizing supporters of the NDP and the Green Party.”

Distorted Regional and Provincial Representation:

LeDuc outlines the very consequential results of this systemic under-representation: “The best-known modern case is the 1993 federal election, which produced a Parliament in which the Bloc Quebecois became the Official Opposition because the concentration of its votes in Quebec gave it 54 of the province’s 75 seats.”  In the same election, “the Progressive Conservatives were reduced to two seats, despite receiving 16% of the national vote – [2%] more than the Bloc[‘s 14%].”  And “the Liberals won 98 of the 99 seats in Ontario.”  

LeDuc explains that the “fear that FPTP would exacerbate regional and linguistic tensions in Canada was fully dramatized by the 1993 outcome, and its implications for the country could be seen in the second Quebec referendum which took place two years later.”  He also states that “the National Energy Policy, and the animosity that it caused in Alberta, were direct consequences of this distortion of regional representation” in the 1980 election in which “Pierre Trudeau formed a majority government ... with no seats in British Columbia, Alberta, or Saskatchewan.”  And he notes that “the divisions and tensions in our politics caused by FPTP are not only regional or linguistic ones,” but also led to Harper’s governments in 2006 and 2008 having no “representation from Canada’s three largest cities”.

LeDuc summarizes these findings by saying “For all of the reasons documented by Cairns and other scholars, FPTP, in my opinion, has never been, and is not now, an effective electoral model for a bilingual, multicultural, regionally complex federation such as Canada.” 

More to come next week. 

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

Dr. Lawrence LeDuc is Professor Emeritus of Political Science at the University of Toronto.  His research interests are in the areas of political participation, electoral reform and direct democracy.

In his affidavit, he adds to the contributions of Profs. John Carey and Karen Bird that we’ve previously described by providing more detail about Canada’s experience with First Past the Post with respect both to the distribution of parliamentary seats and to the representation of various kinds of Canadian voters (particularly women, minorities, and those with particular political ideologies).  In addition, he describes how our current voting system affects voter participation, as well as Canada’s previous history of using proportional voting systems and previous voting reform efforts. 

FPTP Fails to Represent Many Individual Voters

MPs often claim that they represent all their constituents, not just the ones that voted for them.  This is nonsense, and Prof. LeDuc helpfully explains why:  

“While all Members of Parliament in Canada are expected to provide constituents with certain basic services such as assistance with citizenship issues or help in applying for government programs, FPTP at the individual level fails to provide any political representation at the constituency level to all those who voted for any candidate other than that of the winning party in their constituency. It thus generates millions of votes that do not translate into legislative seats (which some refer to as “wasted votes”), a characteristic of FPTP systems that has long been a central focus of the criticism of this system in the academic literature.”  “These voters therefore have significantly reduced voices in government compared to voters who voted for an elected MP.”  

In other words, elected MPs confuse constituency service (which they provide to all constituents) with legislative representation (which, since they can only vote one way, only serves those voters who voted for them and is denied to those who did not).  This “bug” (not “feature”!) of FPTP will be fundamental to our argument that FPTP violates our Charter right to effective representation.

Stay tuned for more about Prof. LeDuc’s other key pieces of evidence.

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC

In September, we introduced you to Prof. Karen Bird, Chair of the Department of Political Science at McMaster University, and the arguments in her affidavit about how our current voting system inhibits the election and representation of women.  Today, we outline her evidence about how First Past the Post voting also discriminates against various minority groups.

Representation of Minorities Lagging

Overall, “visible minority MPs currently comprise about 15%” of MPs, which “lags behind the 22.3 percent share of visible minorities in the population.”  Similarly, only 3% of seats are held by Indigenous MPs, “in contrast to the overall 4.9 percent Indigenous share of the population.”

Results Vary Based on Geography

Prof. Bird says that, under our current voting system, “the most important determinant of minority representation is the degree to which minorities are geospatially distributed or concentrated.”  More specifically, the single-member districts (SMDs) of our current voting system “facilitates elections of candidates from ethnic and linguistic minority groups if they are territorially concentrated”, such as Bloc Quebecois supporters or ethnic minorities in some urban areas in the country.  And, in contrast, “minorities that are more geographically or ideologically dispersed do less well under SMD rules because voters belonging to these minorities do not form a local plurality, which is required to elect a candidate in SMDs.”  This means that “most racialized voters outside [so-called majority-minority] districts [are] unable to vote for members of their ethnic group – or more generally for any visible minority candidate.”

Overall Numbers Hide Both Under- and Over-Representation

This link with spatial distribution patterns means that the overall numbers hide some interesting contrasts: “MPs of South Asian descent held half of all seats (26 of 51) won by visible minorities, a number which makes them considerably over-represented (with 7.7 percent total seat share) relative to their population (5.6 percent). Virtually every other visible minority group remains under-represented, with most holding less than half the share of seats relative to their population share.”  Bird concludes that “proportional [multi-member district] systems are more likely [than FPTP] to achieve equitable representation across diverse racialized groups.”

FPTP Elects Minorities in Enclaves, But Also Has Other Problems

Interestingly, Bird says that “many scholars in Canada assume that visible minorities generally benefit from plurality SMD electoral rules” because geographic concentration for some groups is thought to compel parties to nominate minority candidates in these ridings to win the seats, but she notes that this presumed mechanism “requires the continuation of some degree of residential segregation” of minority groups, and “does nothing for minorities in other districts.” She concludes that, in contrast, “the evidence suggests that … proportional systems ... can produce minority representation at levels similar to SMDs [having] majority-minority districts,” without relying on ongoing segregation or denying minority groups outside of segregated areas appropriate representation. 

Implications for the Case

As with her evidence on women’s representation, Prof. Bird’s affidavit clearly shows that minority groups are systematically disadvantaged by the single-member district aspect of our current voting system, and that adopting multi-member districts would significantly reduce the impediments minorities face to being elected.  These findings will be central to our arguments that our current voting system violates our Section 15 equality rights.

Thank you for your continued support. More on the other affidavits coming soon!

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC