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To referendum or not to referendum is not the only voting question

The following op-ed, by Democracy Watch Co-founder Duff Conacher, was published in the Globe and Mail on January 8, 2016 and in the Hill Times on January 11, 2016 and by on February 12, 2016

To referendum or not to referendum – that is not the only question in the ongoing debate about reforming Canada’s voting system. The overall issue is ensuring the review process, including any referendum, meets best-practice democratic standards.

If Canada’s current voting system had been subject to a referendum in 1867, only wealthy white men (about 10% of the total population at the time) would have been allowed to vote, and secret donations and spending would have dominated the campaign.

The first important question is the makeup of the committee of politicians that will lead the public consultation. Normally, the Liberal majority would mean a majority of Liberals on all committees. However, no more than half the committee should be Liberal MPs to ensure they can’t just push through whatever system they want. The Liberals should have no concerns about giving up their majority on the committee given that Liberal House Leader Dominic LeBlanc has said voting system reform should have “broad support in Parliament.”

Some claim the Liberals have made it clear committee hearings will be the only consultation process. I don’t think the Liberals have made this decision, and if they have they should reconsider because hearings alone will not amount to meaningful consultation, in part because people self-select whether they participate.

The committee should also undertake a “deliberative judgment” process as the “national engagement” process the Liberals have promised, as it is the best practice for meaningful public consultation. Either several meetings should be held of a large citizen assembly (as B.C. and Ontario used in the past to review their voting systems) or of small focus groups across the country. I believe that several small groups are better because one large group is, like any crowd, more likely to suffer from a collective bias (like jumping on the bandwagon).

In either case: a randomly selected, demographically representative group of Canadians should be consulted; with public servants or independent, non-partisan organizations coordinating the process; politicians and officials from all political parties prohibited from participating in any way; an integrity auditor to hear complaints about violations of process rules, and; details about the process and results all reported publicly before any policy decision is made.

As the Liberals’ platform promised, the process should cover not only possible vote-counting changes but also “a wide variety of reforms” – including the right to vote none-of-the-above (as voters in Alberta, Manitoba, Ontario and Saskatchewan can do by declining their ballot), and the right to file complaints and have politicians penalized by an independent watchdog for unjustifiably breaking election promises.

As well, when the deliberative judgment process is ending and people are asked what changes they support (if any), best-practice methods should be used to record their choices. These methods don’t offer take it or leave it choices (which can be easily biased) but instead let people indicate the level of their support of various options – and if used properly they can produce a clear picture of whether there is any specific change most people support the most.

That public consultation process, done properly, can produce a roadmap for change (if change is supported by most people) that is as democratically legitimate as a referendum result.

The difficulty with a national referendum in a federation is the rules. What proposal should be on the ballot or should there be multiple proposals – and how much detail should the question(s) include? Should a certain minimum national percentage of voters be required to vote – or in each province or in each region? Should politicians be allowed to campaign, using their public office funding and travel perks, or not or should their parties have to pay for any campaigning they do? These are not easy questions to answer.

If a referendum is held, a strong argument can be made, given that the voting system determines who sits in our federal Parliament, and given that sections 37, 51, 51A and 52 of the Constitution Act, 1867 guarantee a specific percentage of seats in the House from each province, that at least a majority of voters in 7 out of 10 provinces representing 50% of the total population should be required to approve any proposed change.

If a referendum is not held, the same approval requirement should be applied to any other type of vote on any change proposal.

The current federal Referendum Act – enacted in 1992 for the Charlottetown Accord referendum and for the federal government to use for any future referendum on issues with constitutional implications (such as voting system change) – only requires a simple majority at a national level. It also has other undemocratic flaws that need to be corrected if a referendum is going to be held under its rules.

For example, the Act democratically limits spending by individuals and groups (although the spending limit measure is unclear as it has not been properly updated), and it requires them to register as a “referendum committee” if they spend more than $5,000. However, it undemocratically allows for unlimited donations from businesses, unions and other organizations to the committees, and allows the committees to collude with each other.

This would allow businesses and other wealthy interests to set up many committees, and fund them all to spend the maximum allowed. In 2004, the Supreme Court of Canada upheld limits in the Canada Elections Act on interest group advertising spending, and colluding, during elections specifically to prevent wealthy interests from dominating a campaign. Similar limits should be in place for any referendum.

Only by following best-practice democratic processes will federal politicians make the best, most widely supported, changes to our voting system. Canadians deserve such processes, not only for voting system reform but also for all the other real changes promised by the Liberals, and not just because it’s 2016 but also because such processes are the only way the Liberals can fulfill their promises of a government that “better reflects the values and expectations of Canadians” and that “trusts Canadians” and makes “evidence-based” decisions.

Democratic Voting System Campaign