Crawl Across the Ocean

Thursday, October 27, 2005

And They Call it Democracy

Have you ever had one of those experiences where when you first encounter something, it doesn't strike you as being too odd or unreasonable, but the more you think about it, the more absurd and irritating you think it is?

Well, that's me on the topic of referendums and supermajorities. At first when Gordon Campbell mandated that, in order for his government to go ahead with electoral reform, it would have to get the support of 60% of voters, I thought that this was high, but perhaps a reasonable precaution for a big change like changing the electoral system. After all, weren't supermajorities (more than 50%) required to pass other fundamental changes, like changing the constitution?

But what I eventually realized was that supermajorities are only ever required of votes of politicians, never for votes of the citizens, i.e. referendums. And when you think about it, this makes perfect sense. How can a government deny the wishes of a majority of the population, when the whole point of representative government is that the government should reflect the wishes of the people?

True, we have some protection for minority rights, but this is protection from discrimination and oppression, enshrined in the charter of rights and freedoms, not protection from having the electoral system changed, which is hardly a question of minority rights!

I invite readers to enlighten me, but I can't think of (or find using google) any question ever put to referendum anywhere which required a super-majority in order for politicians to consider it passed. Countries joining the European Union, adopting a new constitution, amending the existing constitution, changing their electoral systems, provinces joining the country, provinces leaving the country, conscription, daylight savings time, 50% majority required for every last one.

I've said all this before, I know, so why do I bring it up again now? Because P.E.I. Premier Pat Binns has just arbitrarily decided, one month before a referendum on a new voting system is to be held, that the threshold for it to pass should be 60%, not 50% as recommended by the Commission of P.E.I.'s electoral future, which Binns himself appointed.

This excellent blog post on the topic quotes Binns as saying,
"Government is not comfortable with 50 per cent plus one in a low turnout situation. If we were to have a very low turnout for some reason, and only 50 per cent plus one supported change, I would hardly think that that would be enough cause to change the system."


Binns is so concerned about the turnout that he is pinching pennies by cutting down the number of polling places! I don't know if they have a media in P.E.I. that is allowed to ask questions (the coverage I've seen from the CBC and the 'Guardian' is unclear on this point) but if they do muster up the gumption to ask a question, they might want to ask what happens if the vote is similar to what happened in B.C. That is, what happens if a clear majority (say 58%) of P.E.I. residents vote in favour of changing the system, but the government doesn't want to 'change the rules' by allowing a change to go through when the vote didn't meet their arbitrary 60% threshold.

In B.C. the government basically decided they would re-do the referendum four years later using the same threshold and hope that the result is 'clearer' this time, hardly an ideal solution - what happens if the vote is the same? Wait 4 more years and do it again?

Historically, politicians have changed the electoral system (and changed it back) without even consulting the electorate at all, something which is perfectly within their powers as granted by the constitution. But now, not only does it require a referendum (which I support), but it needs a supermajority to prevent - what exactly - the rights of the 40-50% minority from being trampled by the 50-60% majority? Or more likely, to prevent politicians having to deal with a system which gives more power to voters and less to them.

It seems like politicians are trying to take credit for 'doing something about electoral reform' while at the same time throwing up procedural barriers that make it near impossible for any reform to actually happen. Then they can say that they tried and 'the people have spoken'. But when politicians ask the people to speak and then conclude that the appropriate course is to act as if the losing side was in reality the victor, this is not democracy - and in some ways, it is worse than a politician just ignoring the whole question of electoral reform altogether.

I've never even been to P.E.I., but if I lived there I'd be embarrassed by the actions of my Premier on this issue. But, you might say, my own Premier in B.C. has done (pretty much1) the same thing. To which I can only say, good point.

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Update: 1 I say pretty much, because, at least in the B.C. case, the 60% threshold was specified from the outset, rather than being tacked on last minute when the Premier got cold feet.

16 Comments:

  • I think the "Clarity Act" proposed a supermajority for sucesssion from Canada.

    By Blogger Pete, at 7:30 AM  

  • Thanks for the tip Pete, I looked it up and it seems like the Clarity Act only requires a 'clear' majority.

    Nobody seems to know what that means, exactly. I'm thinking that if 58% of Quebecers voted for soveriegnty on a clear question and the federal government decided that that majority wasn't clear enough so they weren't going to recognize the result, things could get ugly.

    By Blogger Declan, at 8:45 AM  

  • But at least in Campbell's case the conditions were set from the beginning, and not changed at the last minute. Like it or not, the 60% threshold was set long before the referendum. As I recall, a super-majority requirement was bandied about after the Quebec referendum (yes, the Clarity Act).

    As you know, I am in favour of STV. But I also think Campbell is doing the right thing by sponsoring a "do-over". Imagine if he simply ignored the conditions of the referendum and declared it passed at 50% - wouldn't that be the action of a dictator? Furthermore, it was my understanding that the referendum conditions were set even before the CA started working.

    Finally, I don't think 60% is an insurmountable barrier.

    By Anonymous Ginna, at 11:09 AM  

  • Ginna - good point, I should have been more clear that in B.C.'s case the 60% threshold was at least set from the beginning of the process.

    I don't think it would have been the actions of a dictator to acquiese to the wishes of 58% of the population. Still, you have a point that opponents of reform would rightly feel mislead if that is how it worked out.

    I support the B.C. do-over but it should be re-done with a 50% threshold and I think it could be done sooner.

    As for the Clarity Act, I wouldn't support a supermajority requirement there either although at least with separation you acn argue that a higher threshold is needed because there is no going back (well, it's difficult anyway).

    By Blogger Declan, at 12:09 PM  

  • Declan, if Cambpell had decided to follow the wishes of the 58% who voted in favour of STV that would, indeed, have been the action of a dictator. As ginna pointed out, the 60% requirement was known well in advance - if he is justified in saying "well, 58% is pretty darned close..." then what distinguishes that from "well 57% is..." and on down to "Gee, 50.0023% is a majority, after all..."

    I can justify the super-majority requirement on the basis that the FPTP is a known quantity. Sure, there are lots of (potential) problems and pitfalls; but it has worked well enough to deliver 'peace, order and good government' (okay, at the federal level, that last bit is a stretch) for ~140 years in this country, and for a couple of hundred years before that in the UK. In order to move away from something that works tolerably well, I think we need more than a bare majority - even if some people (and I am one of them) think that an alternative system will work better.

    Cheers,

    Dean

    By Blogger deaner, at 1:37 PM  

  • Campbell had the power to do whatever he wanted without even calling a referendum, so it is hardly dictatorial for him to hold a referendum and then make up his mind (either way) based on the results. Especially given that it was only said that STV needed 60% to be approved, not that any result below 60% would be regarded as a rejection of STV (as, clearly, it wasn't).

    In fact the only reason I can see that siding with the 42% would be less dictatorial than siding with the 58% is because the 60% threshold was (arbitrarily) specified in advance.

    As for your supermajority comments, you seem to be arguing that we need a supermajority to change anything (which has been around for a while).

    The idea that a simple majority can only be used to change situations deemed to be intolerable while a supermajority is required for all else seems a little extreme to me, not to mention in contravention of the Canadian Constitution.

    Besides all that, different electoral systems have been used in the past in Canada (and in similar jurisdictions abroad) and everyone has gotten along just fine.

    By Blogger Declan, at 3:17 PM  

  • Well, Campbell doesn't quite have the power to do what he wants. There is the trifling matter of the 60% majority being entrenched in law. Yes, he could enact new legislation that sets a majority lower, and yes, he could hold another referendum sooner. But he can't retroactively enact legislation that changes the outcome of the previous vote, and I for one am pretty glad that his legislative power does not stretch that far.

    So the question is, should he change the legislation to lower the threshold? 2% is not such a big difference. I think you and I both agree that with a better, more coherent advertising campaign that difference could be easily gained.

    As for a quicker referendum, the point is to avoid the considerable expense of mobilizing Elections BC. These things are not cheap, and at least the date is fixed. While I am strongly in favour of electoral reform and STV in particular, I can see the point that it would be a hard sell to spend that much money. Other than desire, where is the urgency?

    Finally, he could of course, ignore the referendum results altogether and enact electoral reform on his own. But frankly, that would seem to be political suicide, especially after declaring himself bound by the results. I was actually pleasantly surprised he was willing to do-over the vote at all.

    By Anonymous Ginna, at 5:39 PM  

  • Given that the law you link to contradicts the B.C. Referendum Act which specifies that the threshold for all referendums in B.C. (except for electoral reform) is 50%, I think it woud be pretty easy for Campbell to change the threshold.

    As for the previous vote, the law only says that a > 60% vote is binding. It says nothing about what happens if the vote is less than 60%. Surely, if there's room for the government to have discretion it is if the vote falls between 50 and 60% in favour. I don't think that going with 58% of the vote on a referendum can really be considered 'ignoring the results'.

    It's true that it's not the most urgent issue, but still, justice delayed, justice denied and all that.

    I certainly think that the yes side can achieve 60% on the next vote but my point is that it shouldn't have to.

    By Blogger Declan, at 6:03 PM  

  • "we need a supermajority to change anything (which has been around for a while)."

    Not quite - I am arguing that we need a supermajority to change anything that has been around for a while, and been shown to work. I think that "a while" is pretty casual terminology for something that has been practiced for ~500 years. As well, given that FPTP has been the basis for the only observed long-lived democracies in history, "shown to work" probably understates the case.

    In this instance, I don't have a real problem with the need for a supermajority. I also have a no problem with FPTP being the 'default option' for all those who weren't sure, preferred something other than STV, or just didn't care. The "50% plus 1" standard sounds nice - it has a real theoretical appeal; I just think it sets the bar too low in a business that has to concentrate on the practical and pragmatic, rather than the theoretical.

    Cheers,

    Dean

    By Blogger deaner, at 1:48 PM  

  • Yes, the Electoral Reform Referendum act deliberately supersedes specific clauses of the more general Referendum Act. But enacting separate legislation for a specific rather than general case is not new, and doesn't make it any less legal.

    Neither act specifies what happens if the majority condition is not reached. But surely it's contrary to the spirit of having a referedum to reject the results. Imagine the Charlottetown referendum. If Mulroney had said "well, we would be bound to change the Constitution if the referendum had passed, but since it didn't, we'll declare Quebec a distinct society anyway." A leader who did such a thing would have no credibility.

    Furthermore, the success of electoral reform depends on the belief that if it doesn't work out, we can have another referendum and change it back, or adopt something else. Setting the precedent that referedum results can be ignored at will by the ruling party would be dangerous in the extreme.

    And why should the government excerise "discretion" between 50% and 60%. Why not between 40% and 50%? Or 35%? If you're going to override the publicly delcared conditions of the vote, where do you draw the line?

    By Anonymous Ginna, at 10:10 AM  

  • Dean - I think we'll have to agree to disagree on this one. I'm not convinced of the special status of electoral reform.

    I wonder how people would have felt if the Liberals decided they could only legalize same-sex marriage based on a 60% vote in favour in a national referendum.

    Ginna - Why set the line at 50% instead of 40%? Because 50% marks a majority of the population.

    Next time you're with your friends try an experiment. Hold a vote on something, and if your side gets 4 votes and the other side gets 5, tell them that they lost because they needed 60% to win that particular vote. And they won't just be upset that you changed the rules after the fact - try telling them ahead of time as well that they need 60% support because whatever they want is a radical change while what you want is the status quo.

    The idea that when things get put to a vote the side with more votes wins is fairly deeply ingrained in our society, and for good reason. When that's not the case, it inevitably means that some people's votes count for more than others.

    By Blogger Declan, at 3:12 PM  

  • Declan - yes, we will probably have to agree to disagree on this (minor) issue, while both agreeing on the value of an STV (or similar) system.

    "The idea that when things get put to a vote the side with more votes wins is fairly deeply ingrained in our society, and for good reason."

    Sure - and that's why FPTP has such appeal, and was the first choice for determining representatives in the early versions of representative democracies. In effect, STV (and other proportional representation schemes) is an attempt to undo that principal, by saying that while the side with the most votes wins, the other side "doesn't lose" and ensuring that they still get a voice.

    As for your example of a supermajority requirement for gay marriage:
    > Might have been a good idea to require a supermajority - again, we are talking about a change to a social instituion which predates this country, or indeed European exploration of this continent. A litle caution would not go amiss.
    > Might have been a good idea to hold a referendum in the first place - it was a matter of some public interest, and opinions were deeply divided. Martin avoided that by proclaiming the issue to be one of "fundamental human rights" - hogwash in my opinion, and a "right" that exists only because governments choose to intrude into areas that are none of their legitimate concern. I agree that real "human rights" issues should not be decided by a majority vote - but this wasn't such an animal: Martin could have gotten all the "rights" issues out of the way by pursuing a 'civil union' approach - but that would not have had the benefit of the political theatrics and possible discomfort for partisan purposes. I refer to Bismarck's observation.

    Dean

    By Blogger deaner, at 10:06 AM  

  • Great thread. I have a bit more to say about this today at Fruits and Votes.

    Here I want to respond to a few things in the very interesting set of comments.

    On Declan's response to Pete on the Clarity Act, as I noted at another of my F&V posts today, the chances of a PQ majority in future Quebec elections is not great. They have never won a majority of the vote, and the next election may well be held under MMP.

    On the BC-STV referendum, I am less surprised that the approval threshold is unchanged for the "do-over" (even though my outsider's view is that it should be 50%) than I am that it will again be STV and only STV put up against the status quo. Had it been MMP in May rather than STV, my read (which could be wrong) is that reform would have reached 60%. Why not allow a choice, like the first NZ electoral-reform indicative referendum did?

    To Dean, it is not accurate to say that FPTP was the "first choice" in "early versions of representative democracies" because it provided clear winners and losers. It was one of the first electoral systems because it continued an old pre-democratic tradition of specific local representation. (I say "one of the first" because lots of early British elections were plurality in multi-seat districts, which is even worse for representing anyone other than the largest minority than is FPTP.)

    By Anonymous Matthew Shugart, at 12:15 PM  

  • Rousseau argued that, generally, only a simple majority is required for most "regular" decisions. However, for more "serious" matters, a larger majority may be required - the more contentious an issue, the more unanimity is necessary to ensure that the dissenting minority feels the decision is legitimate.

    It goes without saying that separation is possibly the most serious decision that voters could make - indeed, to require only a simple majority would hardly give cause for dissenters to feel obligated by the decisions of the narrow majority. No other decisions involve the dissolution of a polity and the founding of a new one (which, in a real sense, are discrete propositions). Continuing with the illustrations, suppose you have a banquet hall in which there are ten tables each seating ten people. A person at one table proproses leaving the hall, and takes a vote at the table. Five others vote to leave, the remaining four vote to stay. Why should they feel obligated to leave?

    While I don't agree that electoral reform is so substantial a change that it necessarily requires more than 50% plus one, the law required 60%, and democratic decisions can only be recognized by the laws that define them. The key is that everyone knew the thresholds going into the referendum; the dissenters would not have any reason to feel that their votes counted if the threshold is changed arbitrarily after the fact.

    All this points to the fundamental flaw of the Clarity Act with respect to the concept of a "clear majority" - it would still be defined only after the fact, which, while it gives the federal government more of a free hand, is clearly unacceptable by any democratic criteria. Of course a better referendum process in Quebec would take into account the subgroups in the province (anglophones, the Cree, etc.) who would be well within their rights to demand partition.

    By Blogger Josh Gould, at 5:07 PM  

  • Matthew - thanks for the reply, you make a good point about it being surprising that the second referendum will have the same choices (status quo, fptp) as this one. In my initial response to the referendum results I called for a re-do with more options (i.e. including MMP).

    Josh - I'm not sure I buy your banquest analogy. To make it accurate we have to assume that there is a 'social contract' to which all the people at the table have agreed to be bound by the decisions of their 'goverment'. If the 'government' decided it's time to go, they would be in violation of their own laws to stay.

    I've never argued that Campbell should have gone ahead with STV based on the first referendum, but having said that, I think you are misreading the law. It only said the results were binding if the yes vote exceeded 60%, it says nothing about what happens if the vote is less than 60%. So there wouldn't be anything undemocratic or arbitrary about Campbell going ahead with STV based on the results.

    If you want arbitrary and undemocratic, consider that our current system gives governments carte balnche to do whatever they want (including changing the electoral system however they please) for 4 years based on a majority government which can be obtained with the support of less than 40% of voters.

    I suppose you could argue that some principle of symmetry requires that the referendum threshold be binding both ways, even if that isn't stated in the law itself, but I think all symmetry was abandoned by settng a threshold of 60%, not 50%.

    I do agree with your concerns about the clarity act. It's lack of clarity on the necesary threshold could be a real problem someday.

    By Blogger Declan, at 4:36 PM  

  • Oh, yes, the banquet analogy applies only to the case of separation, where the question is really one of breaking the existing social contract and establishing a new one. But there is no moral justification for forcing dissenters to give up their citizenship and sign on to a new state.

    Strictly speaking, no referenda can be binding on a government unless it decides to be bound by it, since the legislature sovereign within its constitutional powers. While I still think that the STV referendum's results must be respected because the threshold was set well in advance, I agree that there is little reason for electoral reform to require more than a simple majority. After all, since it can always be changed by a simple act of the legislature, there is little reason why the threshold for a plebiscite should be any higher.

    My problem with going ahead with STV even after failing to obtain a sufficiently high affirmative vote is the general precedent it sets. If the government believed a 60% threshold was required, and did not say otherwise at any point prior to the vote, then to change the threshold after the fact seems arbitrary. And if the government says the result will be binding, then the "no" vote can be no less binding than a "yes" vote.

    By Blogger Josh Gould, at 9:34 PM  

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