Is BC-STV Constitutional?

December 17, 2004

BC-STV is Inherently Unfair

In response to yesterday's column, which called for reference to the Supreme Court to determine the constitutionality of the proposal from the Citizens' Assembly, a former member of the Assembly wrote with an observation that should be included in any brief to the court. You won't find it in the report of the Assembly, but the mathematics of how the single transferable vote works makes STV inherently unfair.

For the sake of discussion, assume that a boundaries commission is able to determine new constituencies so that each riding has exactly 30,000 voters per MLA. Also assume that each riding has 80% voter turnout, which means 24,000 votes cast per MLA in each riding. Under these assumptions, 48,000 people would vote in a riding that had 2 MLAs and 168,000 people would vote in a riding that had 7 MLAs, but in both cases the number of voters per MLA would be the same. Here is how BC-STV would work. A quotient is determined, which is the number of votes necessary for a candidate to be declared elected. The quotient is the number of valid votes divided by one plus the number of members to be elected. So in this example, the quotient in the 2 member riding is 16,000; the quotient in the 7 member riding is 21,000. What's fair about that?

Under STV, even with perfect equality between the ridings in terms of the number of voters per MLA, candidates in the smallest ridings would be declared elected with 5,000 fewer votes than candidates in the largest ridings. If we work backwards to adjust the number of voters so that it would take the same number of votes to get elected regardless of the size of the riding, then we would violate the basic premise of equality, roughly the same number of voters per MLA.

It will be interesting to see if the courts believe that the inherent inequality between ridings of different sizes satisfies the constitutional requirement for effective representation, such that one citizen's vote is not diluted compared to another's. Anyone who works through the mechanics of how BC-STV would work, can see that there is no way to make boundaries for multiple-member ridings of vastly different sizes (2 - 7) without having them be unfair when the effectiveness of votes is compared between ridings of different sizes. That runs contrary to the case law that applied section 3 of the Canadian Charter of Rights and Freedoms to the determination of constituency boundaries.

Defenders of STV will rush to point out that the number of voters per MLA varies in the current system, but the courts have ruled on that and any redistribution that is found to violate the Charter can be overturned by the courts. If you combine the problems of unequal population-to-MLA ratios between urban and rural ridings with the inherent unfairness of STV, the difference in the number of votes it takes to get elected becomes much greater. Instead of 5,000, as shown in the above example, the difference can be over 20,000. There is nothing fair about that. With the current single-member ridings, attempts are made after every two elections to redraw boundaries to make them fairer. In the case of STV, there is no way to fix the problem because you either have unfairness with respect to the number of voters per MLA, or you have unfairness with respect to the number of voters it takes to elect an MLA. It is not possible to remedy both problems.

December 16, 2004

Is BC-STV Constitutional?

"Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein."
Section 3, Canadian Charter of Rights and Freedoms

There are many reasons to vote no to the recommendation of the Citizens' Assembly that BC adopt the Irish voting system. One of the reasons is that the system probably violates the Charter. The Assembly did not obtain a constitutional opinion on that question, and if the Campbell government did, it is not sharing it with the public. If the referendum passes on May 17th, it would be prudent to refer the question of its constitutionality to the Supreme Court of Canada.

In 1989 Saskatchewan attempted to impose a quota of urban and rural ridings and make urban ridings coincide with municipal boundaries. The Saskatchewan court of Appeal ruled that the proposed changes to the electoral boundaries infringed section 3 of the Canadian Charter of Rights and Freedoms. The case was appealed to the Supreme Court of Canada which found that legislative interference with an independent boundaries commission constitutes a breach of section 3 of the Charter.

Based on that case law some argue that the Citizens' Assembly's recommendation of a single transferable vote (BC-STV) is constitutional since an independent boundaries commission would determine the boundaries for the various multiple-member constituencies. Although the constituencies would vary in size from 2 to 7 members, they argue that the ratio of voters per MLA would be within legally acceptable limits. Some believe that a variance of 25% is acceptable, although the Alberta courts have ruled that any variance must be justified by objective criteria. The issue is far more complicated than how to draw riding boundaries whether their populations vary by 1% or 25%. STV may deny citizens the right to equal effective representation.

In 1991 in the Saskatchewan Electoral Boundaries case, the Supreme Court of Canada ruled:

"The purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se but the right to "effective representation". The right to vote therefore comprises many factors, of which equity is but one. The section does not guarantee equality of voting power."

"Relative parity of voting power is a prime condition of effective representation. Deviations from absolute voter parity, however, may be justified on the grounds of practical impossibility or the provision of more effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced."

The question for BC-STV is whether it dilutes some citizens' votes as compared to others for reasons other than to achieve "effective representation". The Citizens' Assembly acknowledged that there is a trade-off between proportionality and local representation. Ridings with two or three members are much less likely to elect candidates from small parties than are ridings with six or seven members. BC-STV not only dilutes some citizens' votes with respect to others when comparisons are made between large and small ridings, but it also dilutes some citizens' votes compared to others within ridings since some votes are counted more often than others. Those voting for the most favoured candidate would have their second preference also count, but those voting for a candidate in the middle of the pack would find their ballot reached a dead-end.

BC eliminated dual-member constituencies with the 1991 election following implementation of the Fisher Commission's 1988 recommendations on electoral boundary changes. In 1991 the Supreme Court of Prince Edward Island ruled that sections of that province's Election Act which described 16 dual-member electoral districts were a violation of the Charter. In 1994 Prince Edward Island replaced its dual-member ridings with 30 single-member ridings. PEI was the last province to eliminate multiple-member ridings.

The issue of whether multiple-member ridings violate the Charter has not been examined by the Supreme Court of Canada but the possible introduction to British Columbia of multiple-member ridings ranging from 2 to 7 members, with a voting system that counts some ballots more often than others, will make a constitutional test essential.

Click here for two more articles on why you should vote NO to BC-STV.