Please support democracy

Without your support, Democracy Watch can't win key changes to stop governments and big businesses from abusing their power and hurting you and your family. Please click here to support democracy now

Canada’s voting systems still need to be changed in many ways before they will be fully democratic

Set out below is a book review of John C. Courtney’s book Elections by Democracy Watch Coordinator Duff Conacher which was published in edited form in the September 2004 issue of the Literary Review of Canada

“Elections are a key element of any political system that claims to be a democratic” (p.5) writes University of Saskatchewan professor John Courtney early on in his book Elections.  To the uninitiated in debates about politics, such a statement may not be seen as revealing the author’s endorsement of political systems that include elected officials, but to those involved in political debates, no such statement can be accepted unquestioningly as a key democratic standard.

Is Courtney saying that political systems in which citizens directly make decisions themselves through referenda or town hall meetings, without electing representatives, are undemocratic?  Probably not.  But as in many debates about political issues, Elections contains such statements which seem reasonable (and sometimes obvious), until you consider the alternatives.

Considering the alternatives is essential to Courtney’s task, as Elections is one of nine books on specific aspects of Canada’s political system produced in association with the Centre for Canadian Studies at Mount Allison University as part of its Canadian Democratic Audit project.

Auditing a political system may seem to be a less straight forward process than financial auditing, but given the widely varied auditing standards we have witnessed in corporate Canada and corporate America in recent years, both have been revealed as complex processes that depend entirely on the standards applied.  It seems that financial auditors can define “legitimate expense” and “profit” or “loss” and “value for money” in as many varied ways as political auditors can define “inclusive”, “responsive”, and “representative”, all the while staying within the bounds of logic and reasonable argument.

And, of course, in auditing the auditor through this book review, I am bringing my own definition of the standards that should be used to audit Canada’s electoral system, a definition based fundamentally on my values.

Elections may not be a key element of every democratic political system, but they are a key element of Canada’s and most other existing systems.  The difficulties involved in holding fair elections are heightened by the difficulties of overturning an election result.  Any regulatory body considering a complaint about one or more candidates breaking election rules often must determine the impact of the rule violations on the election outcome, an often close to impossible task.  In other words, no matter how tightly regulated, candidates are aware that there is often no effective way to hold them accountable for election rule violations.

Unlike many other challenges to political system decisions, challenges to election outcomes call into question the very existence of a particular government (or at least the choosing of one or more representatives in the ruling party), and striking a government down through a written ruling is something I believe we will never see Canadian courts do, no matter what the evidence before them, unless an election upsets the mainstream status quo of Canadian society (in which case I see a possibility that a fair election would be overturned on unfair grounds).

My lack of faith in Canada’s rule of law as applied to elections is based upon a combination of the difficulties of proving that any election rule violations affected an election outcome, the likelihood that such a challenge to an election outcome will occur after a closely contested election, the difficulty politically any regulator or court would have in overturning an election, and the ruling party’s control of judicial and Chief Electoral Officer appointments in most jurisdictions in Canada.

In addition, I have watched closely for the past decade (and not as closely for another decade) as the rule of law has been routinely ignored when it comes to the actions of politicians and public officials, mainly because of flaws in the systems regulating their actions.  These flaws are common in most of the systems Canada has set up to regulate human action (including the actions of humans in corporations) — either violations are easily hidden, rules have loopholes, enforcement agencies lack independence, powers or resources, penalties are too weak, or citizens are not even empowered to challenge rule violations.

In short, the rule of law in Canada is often a guideline, especially when powerful people are involved.  A specific example of this is that few people have ever been fined significant amounts even when they have violated the the federal elections law, and no one has ever been imprisoned.

Finally, I am an advocate not an academic, and I have the benefit of having just observed the 2004 federal election which revealed some up-to-date information about which Courtney could only speculate.  With this different, more skeptical and advocacy-based, starting point than Courtney (who instead emphasizes how wonderfully far Canada has come since Confederation, especially compared to other countries), I of course end up with a more critical conclusion, seeing more flaws in the current electoral system, and more urgency in fixing the flaws.

This is not at all to say that Courtney glosses over cracks in Canada’s electoral system.  Starting with identifying the impacts elections have on Canadian political parties, citizens, and overall legitimacy of government, and ending with discussion questions for each chapter and recommendations for reform and additional reading, Elections provides a mostly thorough (within the confines of the length of a book) analysis of the system, including many interesting details about its history.

The group of academics involved in the Canadian Democratic Audit project decided that the overall benchmarks for each of the nine areas audited would be public participation, inclusiveness and responsiveness.  Within this framework, each audit adds other more specific benchmarks.  It is also important to note that not all levels of government are fully audited in Elections (and likely couldn’t be due to book-length restrictions), nor are First Nations governments audited at all — the focus is mainly on the federal government.  These limitations, and limitations in the book overall, leave much auditing to be done before the overall conclusions of the book should have been stated, I believe.

Who is allowed to vote is the first of Courtney’s five “electoral building blocks” (p. 9) audited.  He documents that, as in many other parts of Canadian society, and in elections, the development of voter eligibility is revealed as a process of provinces influencing provinces and the federal government, and the federal government influencing provinces and territories.

It is of course laudable that Canadian jurisdictions have moved from a voter eligibility system that only allowed white males who owned property to vote (15% of the population in 1867) to a system in which all official citizens resident in Canada over the age of 18 can vote (69% of the population in 2000), as Courtney describes over 17 pages.  But I was left wanting more than a three-page analysis of the many Supreme Court of Canada Charter decisions that have struck down measures that prohibited voting by judges, mentally challenged Canadians, and prisoners (by a 5-4 split ruling) or allowed the prohibition on voting by citizens younger than 18, and by citizens who live outside Canada more than five years.  In addition, there is little discussion of allowing voting by landed immigrants and other not-quite-officially-Canadian citizens.

Auditing a system requires, I believe, going beyond simply summarizing what the majority of the Supreme Court thought about various voter eligibility rules and then concluding that “The current Canadian electoral system is a model of inclusiveness.” (p. 39).  I think Canadians age 17 and under may have a different view and, even if they didn’t, is the debate about these measures really over, as Courtney seems to say?

Courtney does better in the next section on defining electoral districts, probably because fewer questions are raised by the current status of this aspect of elections.  Once again the history shows that Canada has made great progress through provincial experimentation, moving from infrequent, ruling-party-controlled district drawing processes to arms-length appointed commissions with expert members, public hearings, regular reviews and enforceable criteria.

The current system’s integrity has helped it deal with the key issue of how to draw lines around districts so that as many constituencies in Canadian society (defined by race, ethnicity, language or other factors) as possible have a realistic opportunity of being represented in a legislature.  Again the Supreme Court’s interpretation of the Charter has played a leading role in this process, as it set the standard in a 1991 decison that districts do not have to equalize all voters’ power, but instead must ensure a relative parity of voting power (through parity of the population size of districts within a province), with allowance for variations to make overall, pluralistic and group-based effective representation possible for all voters.

This decision set the basis for Nova Scotia creating districts in 1992 that give its black and Acadian minorities a better chance of electing a representative from their communities, and allowed Saskatchewan to maintain two northern districts even though they were much smaller in population than other districts.  Courtney also details the history of the proposal to create dedicated “Aboriginal Electoral Districts” — ably setting out the pros and cons (including the view by some Aboriginal leaders that it is better for aboriginals to be spread out among many districts with the potential to be the deciding vote factor in many closely fought local elections).

An increasingly important issue, which Courtney also explores well, is the difference in size of federal districts in different provinces.  The Constitution requires that no province shall have fewer MPs than senators, while a 1985 federal law requires no fewer MPs than a province had in the 33rd Parliament (1984-85) or in 1976 (whichever is less).  As a result of these rules and population changes in the past few decades, it currently takes about three times as many British Columbians than Prince Edward Islanders to elect an MP.

The third section of Elections addresses the electoral building block of registering voters, in which Courtney explores the issues of ease of registration and completeness of the list of voters.  From 1938 to 1997 Canada developed the federal voting list through a national door-to-door enumeration during each federal election campaign period, and most provinces continue to use this system.

In 1998, the enumeration process was ended and the list (now called the National Register of Electors) is now updated through combining various public information registries (such as the registry of taxpayers etc.).  The change was made for several good reasons, and as Courtney notes it is still too early to judge the success of the Register.

However, during the 2000 federal election campaign period, 3.6 million updates had to be made to the Register (including 1.05 million on election day), and an Elections Canada post-election survey (“Explaining the Turnout Decline in Canadian Federal Elections: A New Survey of Non-voters” Elections Canada, March 2003) showed that about 17 percent of voters were not accurately in the Register and that about 5-7 percent of voters (especially Aboriginal, youth, low-income and mobile voters) experienced barriers to inclusion in the new system and did not vote as a result.

In addition, voter turnout in 2000 was thought to be 61.2 percent (the lowest since Confederation), but in June 2004 Chief Electoral Officer Jean-Pierre Kingsley finally made public something he should have made very clear two years ago, namely that Elections Canada had discovered one million duplicate registrations in the Register in 2001.  Once the duplicates were removed, actual voter turnout in 2000 increased to 64.2 percent.

Courtney makes the case for continuing the door-to-door enumeration periodically based on the evidence of problems with the Register, but also the finding in some studies that the personal contact of the enumeration process actually encourages voting.  A post-2004 election survey should give updated information about the extent of the problems with the Register (and other reasons for decreasing voter turnout, given that turnout for the 2004 Canadian federal election dropped to 60.5 percent, the lowest since Confederation).

The inaccuracy of the Register should, I believe, have been returned to in Courtney’s audit of the fourth building block, the administration of elections.  Once again Canada’s system has developed through federal and provincial experimentation, with the first creation of an agency to handle elections occurring in 1920.   However, the returning officers for each district in federal elections are still chosen by the ruling party cabinet.  As a result, the possibility that these officers are unjustifiably turning away voters who have had difficulty getting listed in the Register should be explored more fully as a barrier to voting and cause of lower voter turnout.

Even if not many examples of blatant corruption by returning officers are found, apparent and potential conflicts of interest are constantly present for these officers (who make all front-line rulings on election operations).  For all Canadians to have confidence in election results, and especially given the difficulties of overturning election results, the impartiality of election officials must be unquestionable.  Therefore, the federal government should immediately, and finally, respond to the widespread criticism and transfer the power to appoint returning officers from cabinet to the Chief Electoral Officer (CEO) of Elections Canada.

An interesting exploration of Internet and telephone voting is part of the audit of election administration, with the usual concerns about the accuracy/security of these alternatives highlighted.  Courtney also usefully points out that even if the security concerns of Internet voting could be addressed, it may not increase voter turnout as much as hoped given that turnout is lowest among less-educated, lower-income Canadians of any age, people who also have the least access to the Internet.

For reasons I could not fathom, the chapter on election administration also contains a seven-page section on dual-member ridings, infant parties, accommodative representation and uncontested elections that would fit much more clearly in the following two chapters on the fifth building block audited, Canada’s plurality (first-past-the-post (FPTP)) voting system.  And in the chapter on FPTP, Courtney includes two pages on the phrase “Canada’s democratic deficit” and how various interests have been trying to define it — a discussion I think would fit much better in the book’s introduction or beginning of the book-framing Chapter 1.

An audit of the FPTP voting system of course raises the key question of what exactly ensures that any voter is effectively represented by a government (although this question also applies directly to the second section on electoral districting).  Courtney thoroughly and fairly explores different definitions of “effective representation”, and how the factors of elected officials as “trustees” vs. “delegates” of voters, territory and population, and identity politics have affected the ongoing debate about the method of voting in Canada.

The pros and cons of the FPTP system vs. a proportional vote-counting system are also fairly and fully explored, including the interesting turn to proportional voting by Manitoba and Alberta in the 1920s and their return to the FPTP system 30 years later.  Again, Courtney usefully summarizes data from provinces and other countries that shows why changes in vote-counting may not result in proponents’ hoped for increases in the diversity of parliamentarians and in voter turnout.  For example, voter turnout in Manitoba and New Zealand dropped when they changed to a proportional system, while many countries are behind Canada in terms of the share of women in their parliaments even though they use a proportional system.

Courtney’s overall conclusion is that changing to a proportional voting system will likely usually create minority federal and provincial governments in Canada, but it is not possible to know what other intended and unintended effects could occur (or even be likely to occur).

Unfortunately, I think Courtney reveals a bias against proportional voting when he claims that this change would be unlike changes in other areas of Canada’s election system because those changes had predictable effects.  It is hard to believe that the early 1900s change that allowed women to vote did not have, especially for those considering it, just as many possible, unpredictable, effects.  Courtney further reveals his bias when he not only notes that the FPTP system encourages parties that want to form a federal government to build a “big tent” party accommodating many interests, but also that any changes to the system should not encourage parties “to pursue other more narrowly or sectoral” bases because this would be incompatible with Canada’s history and traditions. (p. 175)

This is not to say that Courtney jumps to worst-case scenarios to reject changing to proportional voting, just that his overall conclusions in this and many sections of the book are over-reaching and too-often not based upon the facts and figures presented before the conclusions, but instead upon a personal preference or the traditional status quo.  As a result, I highly recommend reading the list of “Discussion Questions” (pp. 178-9) at the back of the book as a counter to Courtney’s conclusions, as they highlight how many aspects of Canada’s election systems remain open to debate.

Given that two of the Canadian Democratic Audit project’s overall benchmarks for each audit are “public participation” and “inclusiveness”, I was also very surprised to see no discussion in the book of the criteria candidates and parties need to fulfill in order to get on the ballot, nor of the election financing and spending systems for both parties and third parties (all of which have been the changed and challenged in court in recent years).  Meanwhile, four pages are devoted to the concept of compulsory voting, even though this measure is on the margins of public debates and has not been proposed or acted upon by any government in Canada.

Even more surprising is that Courtney completely ignores the issue of promise-keeping by politicians and political parties.  I admit I am personally and organizationally interested in the issue of “honesty in politics” but in addition all evidence shows that this is a much more important issue to many more Canadians than is the way votes are counted (which Courtney views as the current central election-related issue).  For example, many surveys over the past decade show that almost 90 percent of Canadians believe that politicians lie to win elections (and this belief is backed by many specific examples), and according to Elections Canada’s post-2000 election survey, the highest-ranked reason for non-voters decreased interest in politics was politicians’ false promises/dishonesty/lack of confidence in politicians.

Another benchmark of the Democracy Audit project is “responsiveness”, and as well Courtney states that elections are “the basic mechanism holding a government accountable for its policies and actions” (p.5).  So why no discussion of the common practice of election promise-breaking which so completely marks a government as non-responsive and so thoroughly thwarts attempts by voters to hold governments accountable?

Overall, as a result of these issue gaps in Elections and the focus on applauding the history of election developments in Canada — as opposed to presenting complete, open-minded assessments of all aspects of the present system — I can only offer a qualified recommendation to read this book.  It is a useful overview, and the beginning of an audit, but much more remains to be debated before solid conclusions should be stated about many aspects of elections in Canada.

For more details, go to Democracy Watch’s Voter Rights Campaign page