Is FPTP unconstitutional?

I confess that the following story, which began in 2004, flew completely under my radar – much to my chagrin. I only learned about this yesterday, but now that I am aware of it, I do plan to follow this case very closely.

A legal challenge has been launched by a group in the province of Quebec to have the province’s electoral system, FPTP, declared unconstitutional. In 2004, the Association for the Advancement of Democratic Rights deposed a motion in the Quebec Superior Court that sought to have the offending articles in Quebec’s Electoral Act that are responsible for bringing forth what they call  “a discriminatory voting method” to be declared null and void. The group is asking the Courts to determine whether the voting system in use in Quebec (and across Canada) respects the equality guarantees inherent in the voting rights protected by the Canadian Charter of Rights and Freedoms.

The group won the first stage – their case was ruled to be admissible, but they lost the second stage, the Court did not rule in our favor in the first instance. They launched an appeal, and the first hearing took place on 8 February 2011.

In looking into this matter, I discovered much had been happening in the province of Quebec that, as far as I can tell, has gone largely unreported in the rest of Canada.

Quebec’s Election Act stipulates that after every other election, the Directeur général des élections du Québec (DGEQ), who is responsible for overseeing and administrating the Act and elections, will authorize a review of the province’s electoral boundaries. I used to live in the province of Quebec, and it was oft stated that the region of Montreal was under-represented in the National Assembly, and the more rural parts of the province over-represented. This reality favoured one party, the pro-independence Parti québécois (PQ) rather than the Liberal party. It was common knowledge that the Liberals had to have a significant lead in the polls over the PQ in order to win a majority government, whereas the PQ needs a much narrower lead to win a majority (and at least once actually finished second in votes to the Liberals and still won a majority, as occurred in 1998).

The review of Quebec’s electoral boundaries began in 2007 by the Commission de la représentation électorale (CRE). A preliminary proposal to delimit the 125 electoral divisions was presented to the public; public hearings were held all across Québec and a third general election, in 2008, was exceptionally held on the basis of the electoral map of 2001.

In the fall of 2010, the delimitation proposal of the CRE was submitted for the consideration to a Committee of the the province’s National Assembly (provincial legislature). At that briefing, two Liberal Ministers accused the DGEQ of betraying the regions and to have performed his work in a manner beneath the dignity of the institution he represented. This prompted Marcel Blanchet, the Director General of Elections, to tender his resignation. On October 28, 2010, Premier Jean Charest announced that he was scrapping the electoral map drawn up by the independent CRE and effectively suspending the electoral laws in Quebec.

On November 23 2010, the Quebec assembly passed Bill no. 132, entitled An Act to suspend the electoral division delimitation process. Its object is to suspend, until June 30, 2011, the electoral map revision process.

Due to the passage of Bill No.132, the process to revise Quebec’s electoral map has been interrupted. As a result, the Commission cannot proceed to what was supposed to be the next step, namely the tabling of its second report describing the revised delimitation proposal.

Presently, 27 of the 125 ridings do not conform to the Quebec Electoral Law’s stipulation that the number of electors per riding can be no more or no less than a 25% deviation from the average number of electors per riding province-wide. The proposed map would have rectified this anomaly. However, in doing so, the number of seats in rural Quebec would have been reduced in favour of increasing the number of seats primarily in and around the City of Montreal. This was politically problematic for Quebec’s political parties. The rural parts of the province are overwhelmingly francophone and white, while Montreal is much more ethnically and linguistically diverse.

The group that is challenging Quebec’s electoral system before the courts argued that FPTP discriminates against the anglophone and allophone (who don’t have French or English as their first language) population. For example, in Quebec, ridings where anglophones and allophones make up more than 20% of the electorate have on average 7% less voting power than the provincial average. As well, because of the wasted vote phenomenon playing out in these ridings, the participation rates in these voting districts is 13% lower than the provincial average. While the lower court which first heard the case dismissed this on the grounds that discrimination on a linguistic basis is not protected by Section 15 of the Charter of Rights and Freedoms, during the appeal, the group is now arguing that FPTP discriminates against women since they are in general under represented in countries that use this voting system. Section 15 of the Charter does guarantee gender equality.

I am not entirely clear on what is currently happening in Quebec. There is surprisingly little that comes up online when I try to search for more information. I assume that the National Assembly is trying to come up with some alternative to the electoral map review suspended with the passage of Bill 132. One person who is involved with the court challenge has been blogging about this matter here, and in this post, he makes references to some amendments passed by the Assembly in March:

This week the PQ recommended that there be two different provincial quotients, one for rural ridings and one for urban ridings, which means that the inequality of the vote would become institutionalized. Furthermore, this move would be in the national interest. Remember this is the party that claims to be socially democratic. I guess some social democrats are more equal than others depending where you live.

Not to be outdone, the Quebec Liberals then proposed that they would add three additional electoral districts to the map. Too bad it would take at least 26 additional seats to lower the provincial average for the number of electors per riding so that all of the ridings would conform to Quebec’s own electoral law.

As I stated, this issue doesn’t seem to be getting any coverage in the rest of Canada, and I am having a very difficult time finding any media coverage from Quebec. I have found one story about the court challenge on the Radio-Canada site (in French). There is also this press release from the Quebec Liberal Party (also in French) outlining the party’s proposals mentioned in the above quote.

The group’s appeal hearing appears to have gone very well, based on this blog post. The judges are expected to issue a judgement in 60-90 days, which should be sometime in May. Regardless of the outcome, this case will be appealed to the Supreme Court of Canada. If the group wins, the Quebec government will appeal. If the group loses, they will most likely appeal. Ultimately, if FPTP is found to be discriminatory and in violation of the Charter of Rights and Freedoms, this will have an impact across the country, since every jurisdiction in Canada uses FPTP.

I really wish this case was getting more media attention.


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