Vote Dilution means Minorities Have Less Voice

By: Law is Cool · July 29, 2007 · Filed Under Constitutional Law, Politics · 11 Comments 

Not All Votes are Equal

A study by University of Toronto Professor Sujit Choudhry and J.D. student Michael Pal released earlier this year by the Institute for Research on Public Policy found that under the current electorate system urban areas have less of a vote than rural areas.

And because most ethnic minorities are concentrated in Canada’s urban areas, their needs and interests are underrepresented in the House of Commons. Canada’s visible minority population is about 4 million, approximately 13.4 per cent of the total population.

An example used is Kenora, the smallest electoral riding in Ontario with a rural population of 60,570, having equal weight in the House as Mississauga East-Cooksville, an urban, largely visible-minority immigrant population of 122,565.

The average ballot in Ontario, British Columbia and Alberta is also worth less than a ballot in another province.

“The point of our paper is that ‘one person, one vote’ should mean something,” says Choudhry. “It’s the benchmark against which we measure democracy.”

Section 3 of the Canadian Charter of Rights and Freedoms states,

Democratic rights of citizens

3. 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.

But this does not mean that all votes are equal.

Choudhry and Pal also said,

…if Canada is to successfully integrate its visible minority immigrants, then we must ensure that our political institutions are perceived as scrupulously fair in how they represent the interests of the newest members of the Canadian political community.

The current system is governed by three major legal foundations:

  • Constitutional Law on seat allocation
  • Electorate Boundaries Readjustment Act (EBRA) and its interpretations by Raiche v. Canada 2004
  • Carter decision of Supreme Court of Canada

Seat Allocation under the Constitution

The Constitution Act, 1867, s. 51 outlines the formula for calculating representation:

Readjustment of representation in Commons 51. (1) The number of members of the House of Commons and the representation of the provinces therein shall, on the coming into force of this subsection and thereafter on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules:
Rules
1. There shall be assigned to each of the provinces a number of members equal to the number obtained by dividing the total population of the provinces by two hundred and seventy-nine and by dividing the population of each province by the quotient so obtained, counting any remainder in excess of 0.50 as one after the said process of division.
2. If the total number of members that would be assigned to a province by the application of rule 1 is less than the total number assigned to that province on the date of coming into force of this subsection, there shall be added to the number of members so assigned such number of members as will result in the province having the same number of members as were assigned on that date.

51(2) is referred to as the grandfather clause that ensures that the number of seats will not decline.

The Constitution Act, 1915, 5-6 Geo. V, c. 45 (U.K.) enacted these clauses:

Constitution of House of Commons 51A. Notwithstanding anything in this Act a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province.
Increase of Number of House of Commons 52. The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.

The numbers are further governed by Constitution Act, 1985 (Representation), S.C. 1986, c. 8, Part I, which sets the number of seats to 279 since 1986. The distribution of these seats are readjusted after every census to try to achieve proportional representation.

EBRA and Raiche v. Canada

The Electorate Boundaries Readjustment Act (EBRA) establishes independent electoral boundary commissions for drawing electoral boundaries:

(2) The ten commissions established pursuant
to subsection (1) shall consider and report
on the readjustment of the representation of the
provinces in the House of Commons required
to be made on the completion of each decennial
census.

The commissions are further charged with the following responsibilities:

15. (1)

a) the division of the province into electoral
districts and the description of the boundaries
thereof shall proceed on the basis that the
population of each electoral district in the
province as a result thereof shall, as close as
reasonably possible, correspond to the electoral
quota for the province…

(2) The commission may depart from the
application of the rule set out in paragraph
(1)(a) in any case where the commission
considers it necessary or desirable to depart
therefrom

Redistributions occur over 10 years or more, not sufficient to keep up with the changing demographics of some of Canada’s largest cities, especially when considering immigration.

However, in Raiche v. Canada 2004, the province of New Brunswick tried to rectify significant disparities in voting powers between Francophone Acadians and Anglophones in Mirimichi, the latter experiencing significant dilution.

The ruling found this attempts at reform have been considered ultra vires, our outside the power to do so, by contravening EBRA. The community of interest, in this case Acadians, had priority over the goal of voter parity.

And although the Nova Scotia commission redrew riding boundaries to favour the Black community around Halifax as a community of interest, in general these communities of interest are not considered to be defined by ethnic, racial, or linguistic lines.

Instead, the following criteria are generally employed:

  • Balancing Rural – Urban Interests
  • Socio-Economic Connections
  • ‘ Number of Communities in the Constituency
  • Degree of Difficulty to Serve
    • accessibility and physical features that affect accessibility
    • size of the constituency
    • distance between communities in the constituency
    • distance between the constituency and the House of Commons

The findings suggest that attempts to create greater voter equality for visible minorities may run the challenge of conflicting with priorities under EBRA as it is currently interpreted.

The Attorney General for Saskatchewan v. Roger Carter, Q.C.

Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, also known as the Carter decision, is the only electoral boundary distpute to reach the Supreme Court.

Carter found that s. 3 of the Charter did afford effective representation, not necessarily an equal vote.

However, Carter did cite minority representation as a valid justification for deviations from voter parity, but effectually allowed for the assumption of rural minorities and not minorities of other types. Carter also ignored the fact that overrepresentation of rural areas may directly harm other minority representation.

Chaudhry and Pal claim the finding was based on two major unstated reasons:

  1. most of the electorate maps across Canada would be invalidated
  2. the court was unwilling or unable to challenge the interprovincial variances that are cause of most of the voter dilution problem

Proposed Reforms

Any changes to EBRA would meet incredible resistance, as it would require Constitutional change and unanimous provincial consent.

Newfoundland and Labrador, Prince Edward Island, Nova Scotia and New Brunswick, all of whom benefit from the current situation, would be less than likely to support such changes.

And although the grandfather clause, 51(2), does not require provincial consent, the rural ridings that benefit for the disparity, namely Newfoundland and Labrador, Nova Scotia, Quebec, Manitoba and Saskatchewan, would similarly be unlikely to support the motion.

Recommendations provided by Pal and Choudhry include three major points:

  • Increase the size of the House of Commons to 327 members to accommodate population growth in BC, Alberta and Ontario.
    • all seven provinces benefiting from special clauses retain their seats
    • would still require EBRA reform
    • would bring parity close to equal (0.97-0.99 depending on scenario)
  • Amend existing legislation such as the EBRA and provincial legislation so that ridings vary less in population size.
    • decrease intraprovincial voter variance to reduce vote dilution effect
    • include visible minority demographics in the definition of communities of interests
    • decouple provincial and federal ridings, similar to Ontario’s Bill 214, the Election Statute Law Amendment Act
  • Bring more pressure to bear on the electoral boundary commissions, which determine the sizes of ridings to promote voter equality.
    • commissions are bound to public consultation, and receive submissions on various issues
    • MPs provide input that is often adopted

Provincial Reform

The authors also cite provincial reform, and claim that vote dilution disparity occurs at this level as well. New Brunswick was famous in 1988 for electing absolutely no opposition members to their legislative assembly, despite considerable support in the general population.

Citizens’ Assembly on Electorate Reform in Ontario has proposed on May 15, 2007 a new Mixed Member Proportional Representation (MMPR) system. The Law
Commission of Canada recommended the adoption of a similar system in the House of Commons.

Devin Johnston posts a video where Jack Layton discusses Proportional Representation

Voters during the upcoming Ontario provincial election on Oct. 10, 2007 will choose whether to adopt this new system.

The authors do point out that visible minority vote dilution and unequal voting power will still occur to some extent with MMPR. Regional boundaries still affect geographic voting strength.

And if in the new proposed MMPR system the 39 list members come at the expense of urban ridings, the vote dilution will actually get worse.  Alternatively, if smaller parties run a larger slate under MMPR, they have the opportunity to present a greater diversity among their candidates.

So although most political commentators in Ontario are currently discussing MMPR, there remains the challenge of voter parity and minority representation that has yet to be properly addressed.

Resources
Keith Archer. (1993). Conflict and Confusion in Drawing Constituency Boundaries: The Case of Alberta. Canadian Public Policy 19(2):177-193.

Canadian Human Rights Commission. (1991). Is Every Vote Equal? The Charter and the Right to Vote.

Graham F. Scott. (2007). One Person, Half a Vote? Leading Edge. University of Toronto.

Lawrence Leduc. (July 25, 2007). Ontario’s rare chance to revamp democracy. Vote for MMP.

Comments

11 Responses to “Vote Dilution means Minorities Have Less Voice”

  1. Send to Friend | Vote for MMP on July 30th, 2007 8:55 pm

    [...] Vote dilution means minorities have less voice Blog: Law is Cool – July 29 [...]

  2. Fruits and Votes » Prof. Shugart's Blog » Electoral reform: Where the Canadian parties stand on July 31st, 2007 3:04 pm

    [...] See Law is Cool. [...]

  3. Ballot Access News » Blog Archive » Ontario Will Vote on Proportional Representation on July 31st, 2007 6:56 pm
  4. Vote for MMP on August 2nd, 2007 3:12 pm

    Better Representation and Decreased Vote Dilution…

    The proposed changes to Ontario’s voting system would likly imporove the representation of minorities as well as partially alleviate the vote dilution of minorities in Ontario.

    Better Representation of Underrepresented Groups…

  5. lawiscool on August 2nd, 2007 3:21 pm

    Thank you for your comments, “Vote for MMP.”

    We would agree that the potential for greater parity does exist with the proposed system, but it depends on how it is executed. Ideally the topic of urban and minority parity should be raised as one of the supporting points for MMPR.

  6. Serge on August 4th, 2007 1:04 pm

    This account appears to misrepresent the article. It does not address ethnic minorities. It address only “visible minorities”, i.e. racial minorities. Furthermore, it does not address so-called “visible minorities” as a set of ethnic gruops, but as a monolithic block. It is unclear that this distinction is sociologically well-founded — first, because settlement patterns appear to follow ethnic (many groups) rather than visible-or-not-visible (two groups) lines; second, because there is little evidence to suggest that all “visible minority” ethnic groups have settlement patterns distinct from all “invisible minority” ethnic groups. Anyone who has visited Toronto’s Little Italy/Corso Italia/Woodbridge, its Portuguese districts, and so forth — these neighbourhoods are deemed “invisible” by the Choudhry-Pal study — has experienced tangible evidence of this flaw in their basic assumptions.

  7. Omar on August 4th, 2007 9:11 pm

    Serge,

    Thanks for your comment.
    The term visible minority was deliberately avoided, but we can see how confusion can occur between the terms. You’re right in that the interests of all urban dwellers, including non-visible minorities, are underrepresented by imbalances in voter parity.

    The reason that Choudhry & Pal singled these groups is because they often face issues of discrimination and other social challenges that other ethnicities do not. For this reason, there are numerous social programs and governmental initiatives that do focus almost exclusively on visible minorities.

    The contrast still remains urban/rural, and nearly all immigrant patterns in Canada continue to be centered around urban areas.

  8. Vote Dilution: Web Search Results from Answers.com on August 9th, 2007 8:32 am

    [...] reasons: some of the rules …utorontolaw.typepad.com/faculty_blog/ 2007/02/minority_vote_d.htmlVote DilutionA study released earlier this year by the Institute for Research on Public Policy found that under [...]

  9. C.U.R.D. :: View topic - MMP Can Potentially Fix Vote Dilution on August 16th, 2007 4:06 am

    [...] it can fix the problem of voter dilution, which adversely affects minorities and urban dwellers. http://lawiscool.com/2007/07/29/vote-dilution-means-minorities-have-less-voice/ Of course there is no guarantee that this will happen. Voter parity has to become a major [...]

  10. Harald Korneliussen on August 24th, 2007 3:15 am

    Don’t you think it’s odd that a politician’s voting power is always 1, but a citizen’s voting power can be 0.7, 1.3, 1.1, depending on where he lives?

    I think it should be the other way around. Keeping the nice propotional systems, but to make up for districting distortion, a delegate’s vote is weighted according to his actual number of supporters.

    Why has that never been tried anywhere in the world?

    Because politicians are in charge, perhaps?

  11. Octaevius Altair on October 30th, 2008 1:54 pm

    I am in the process of defending the Canadian Charter of Rights and Freedoms that has been violated through the illegal age of sexual consent increase contained within Bill C2. Members of a religious cult are not permitted to abuse their power within government to draft legislation and impose laws targeted at a portion of the population to divest them of protected rights based on religious motivation.
    Do feel free to contact me if any are interested if finding out more about the challenge I must recommence as I neglected to submit forms and must reapply for a hearing.

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