Juste avant les élections fédérales en Octobre, j’avais participé (en compagnie de Hoi Kong) à une mini-conférence à l’Université de Montréal, intitulée « Gouvernements minoritaires et/ou de coalition : Legality and/or Legitimacy ». La chose m’avait échappé à l’époque, mais ma présentation est disponible en ligne. Évidemment, elle ne s’est pas avérée très pertinente vu le résultat du vote du 19 octobre, mais elle pourrait l’être dans quelques années, d’autant plus si le système électoral est modifié entre temps. La voici.
I have a new post up at the CBA National Magazine’s blog, arguing that, with one significant qualification, a private member’s bill that would lower the voting age at federal elections to 16 is a good idea and should be enacted. I have already made the case for lowering the voting age, to 16 if not lower still, here and here. So I am happy to see that an MP, Don Davies, has taken up this cause ― and I hope that the government endorses it too, which would make the passage of the bill much more likely.
The one reservation I have about Mr. Davies’ bill as it now stands is that it makes no separate provision for, and indeed no mention of, a minimum age for running for Parliament. As I explain in the National Magazine post, under the Canada Elections Act, almost all eligible voters are allowed to be candidates. But it is not obvious that the minimum age for being an MP and for voting should be the same. At the very least, I think the issue deserves to be debated.
Subject to that, I wish Mr. Davies’ good luck with his bill. Its enactment would make our democracy more inclusive, and thus better.
Why the concerns of those who want electoral reform do not move me
When I wrote about the constitutionality of electoral reform, I did not want to discuss its merits, beyond saying that I did not believe it had many, or the process by which it should be determine upon, beyond saying I favoured a referendum. While I thought it important to mention my positions in order to avoid my constitutional opinion being interpreted as self-serving, I did not mean to argue for them, not least because I did not think I had any arguments to make that would be very interesting or original. Prompted by some of the comments I received, I have thought about these arguments again, and come to the conclusion that one of them may be of some interest, because it is seldom if ever made.
The two main problems that electoral reform is usually said to address are those of “disproportionality” and “wasted votes.” Disproportionality refers to the discrepancy between the percentage of the votes received by a party and its percentage of seats in Parliament, any such discrepancy being, in the view of those who make this argument, undemocratic. Wasted votes are those that apparently do not serve to elect anyone ― that is, under the first-past-the-post system that we now use, those cast for candidates who do not win the riding in which the votes are cast. Proposed reforms ― ranked ballot and mixed-member proportional representation are the main options, if I understand correctly ― address these issues in different ways and to different degrees, but I take it that those are who support reform are usually motivated by these concerns. (Or at least, those who support reform on grounds of principle rather than partisan interest.) There are other arguments for electoral reform, of course, such as that ranked ballot is supposed to make for kinder, gentler politics (like in Australia, I guess), or increased voter turnout (like in Switzerland, I suppose) but they strike me as speculative at best.
Here’s why concerns about disproportionality and wasted votes do not move me. Imagine a simple election between two candidates ― like the run-off stage in a French presidential election. Say the winner gets 55% of the vote, and the loser gets 45%. But the winner gets the prize, the French presidency for example, 100% of it, and the people who voted for the loser go home and their votes have no apparent effect at all. On the account of our would-be electoral reformers, this election results in substantial disproportionality, and a large fraction of the votes cast in it is wasted. Its democratic character should, therefore, be regarded as very questionable. Except that, of course, nobody actually thinks that. Similarly, nobody thinks it undemocratic that a party with, say, 55% of the seats in Parliament gets to govern 100% of the time while that Parliament exists, and nobody seems to say that the votes of the opposition parties are “wasted.” The disproportion between 55% of the seats and 100% of the power is actually more significant, both in sheer numbers and, more importantly, in effect, than, say, that between getting 40% of the vote and 55% of Parliamentary seats. Yet it is only the latter that is said to be somehow undemocratic. I just don’t see how that is the case. The complaints of the proponents of electoral reform sound in principle, but they strike me as selective and inconsistent with what they are happy to accept in other situations.
For my part, I am no more bothered by the disproportionality or wasted votes in the elections for Parliament than by the same “problems” that arise within Parliament itself. What concerns me is how to limit the ability of a Parliamentary majority, however constituted, to harm both the opposition in Parliament and the citizenry at large ― including its supporters of course ― while it is in office, and how to prevent that majority from entrenching itself so as to become impossible to remove from office at the next election. Electoral reform is not a solution to these concerns. (Indeed some version of it may ― though this too is a speculative argument ― make the entrenchment problem worse.) It is therefore, in my view, an unnecessary disruption of our politics, and a distraction from the issues on which we should be focusing.
NOTE: Feel free to comment, but I doubt I will respond unless I think your observations respond directly to the point I’m making.
Constitutional amendment with provincial consent is not required for electoral reform.
The federal government’s pursuit of electoral reform has raised a number of questions: is reform necessary or desirable at all? If so, what new electoral system to adopt? Should the people be consulted before reform is implemented? And now, thanks to op-eds published by Michael Pal in The Globe and Mail, and Yaakov and Jonathan Roth in The Toronto Star, we also have to ask ourselves whether it would be constitutional. In my view, however, the answer to the latter question is much clearer than to the others. The constitution is no obstacle to Parliament acting alone to implement (most forms of) electoral reform. (By the way, in case you think that my opinion on this is relevant to assessing the argument that follows: I think that electoral reform is a bad idea, and I think that if the government insists on endorsing it, there should be a referendum before reform is implemented.)
Section 44 of the Constitution Act, 1982 ― which prof. Pal describes as an “obscure provision,” and Messrs. Roth do not mention at all ― provides that “exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons, subject to sections 41 and 42. As a starting point, it would seem logical to consider electoral reform an amendment to “the Constitution of Canada in relation to … the House of Commons,” and thus within the purview of Parliament, except insofar as sections 41 and 42, to which I will return, provide otherwise.
Those who think unilateral electoral reform would be unconstitutional point to the Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32,  1 S.C.R. 704, which introduced the notion of “constitutional architecture” that limits Parliament’s amending power under section 44. The “architecture,” which seems to consist of “assumptions that underlie the text [of the constitution] and the manner in which the constitutional provisions are intended to interact with one another,” is an entrenched part of the constitution, and cannot be amended by Parliament acting alone.
Prof. Pal suggests that the first-past-the-post electoral system is part of that architecture since, although it “is not mentioned directly in the Constitution, … [n]umerous parts of the Constitution presume that [it] is in place.” Moreover, in his view, electoral reform “would affect provincial interests,” although “[l]esser changes than a move to proportional representation could be interpreted as” doing so “only trivially … and not really changing the constitutional architecture.” For their part, Messrs. Roth insist that the Constitution Act, 1867 “expressly assigned to each province a fixed number of ‘electoral districts,’ each entitled to return ‘one member’ to the House. This ‘constitutional architecture’ plainly presupposes district-based elections.” They also point to the use of first-past-the-post in the United Kingdom, to whose constitution ours was intended, according to its preamble, to be “similar in principle.”
But it is not enough, it seems to me, to say that first-past-the-post is how we always elected representatives to show that it is a part of the “constitutional architecture” as the Supreme Court understood that notion in the Senate Reform Reference. In that opinion, the Court said that “the institutions provided for in the Constitution” ― such as the House of Commons ― “can be … changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact.”  That, in my view, is what electoral reform would do. It might change the House of Commons to some extent (though to what extent would depend on the shape the reform takes), but would not affect its “nature” as the representative part of our national legislature or its role of serving as the electoral college for the choice of a Prime Minister, making laws, and pretending to hold government to account.
Prof. Pal never says, unfortunately, what parts of the constitution rely on first-past-the-post, and for my part, I am unable to figure out what they are. It is noteworthy, for instance, that section 3 of the Canadian Charter of Rights and Freedoms provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons” (emphasis mine), as opposed to, say, “the election of a member.” The latter formulation would presuppose election in single-member districts. The former does not, since an election under a system of proportional representation is still “an elections of members of the House of Commons.” As for the provisions assigning a specified number of districts to each province, which Messrs. Roth invoke, these were obviously intended to be, and have been, amended by Parliament acting alone since 1867, as the number of districts and members of Parliament was increased.
Note, by the way, that contrary to what Messrs. Roth say, one or two of the districts created by section 40 of the Constitution Act, 1867 were actually entitled to two representatives in the House of Commons. Indeed, multi-member districts were common in the United Kingdom in 1867 ― most English Members of Parliament represented counties or boroughs that returned two members each, and some counties had three representatives. There were even exceptions to the principle of geographical representation (as well as the one man, one vote principle), in the shape of university constituencies that allowed the holders of some degrees from some universities to elect additional representatives for their almae matres. Quite apart from the fact that the legal effect of the preamble to the Constitution Act, 1867 is matter of doubt on which the Supreme Court has wavered over the years, the claim that geographical constituencies electing single members of Parliament using a first-past-the-post system was a matter of long-standing fundamental constitutional principle in the United Kingdom in 1867 is historically inaccurate.
Thus I am not at all persuaded that the constitution’s entrenched text in any way depends on or implies the first-past-the-post voting system. If anything, I suspect ― though I have not done the historical research to prove it ― that section 3 of the Charter might have been written specifically to avoid entrenching this arrangement. Nor do I think that electoral reform would impermissibly affect the constitution’s architecture. While changes in the relationship between Parliament and the executive are conceivable in the wake of a move to some form of proportional representation, they are unlikely to be fundamental in nature. As for changes to the relationship between Parliament and the provinces, I do not understand how any could result ― except in the one case which is also ruled out by the constitutional text.
The exception to Parliament’s general ability to enact electoral reform under section 44 of the Constitution Act, 1982 concerns reform plans that would sever the relationship between members of Parliament and provinces from which they are elected ― in other words, those versions of proportional representation that would distribute seats on the basis of national, rather than provincial vote totals. The trouble for such systems lies in the entrenchment, in section 41(e) of the Constitution Act, 1982 of “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented” in 1982, and in section 42(a), of “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” (emphasis mine in both cases). It is thus the provinces ― though not any territorial subdivisions within the provinces ― that form the basis of representation in the House of Commons, and that principle is indeed part not only of the constitution’s architecture, but of its very text.
Provided that it respects this principle, however, Parliament is constitutionally free to change voting arrangements by ordinary law enacted under section 44. Such changes would, no doubt, be of great political significance. But while that may be (I think it is) an important argument in favour of giving the people a say over electoral reform, it is not, in itself, a reason to consider that constitutional amendment with provincial consent is necessary to effect such changes. The Senate Reform Reference does not hold the contrary. The question of electoral reform’s constitutionality is, I believe, a distraction from those about its desirability and the process by which its desirability ought to be determined.
This is the last substantive post in my duty-to-vote series. I have already addressed a number of instrumental arguments in favour of such a duty: claims that it allows better aggregation of information about the voters’ preferences, that it enhances the legitimacy of our political system, and that it improves the quality of election campaigns. In this post, I address a different type of argument: that we must vote not because universal voting serves some other purpose, but just because it is a “civic duty.” One cannot, it is said, be a good citizen if one does not vote.
Andrew Coyne, although he also makes a number of instrumental arguments in favour of a (legally-enforced) duty to vote, invokes this idea of civic duty when he asks, presumably rhetorically: “[w]hy should voting, the fundamental act of democracy, be an option, and not, like jury duty or paying your taxes, a basic obligation of citizenship?” When I first announced this series of posts, Craig Forcese responded (on Tiwtter) that “Civics, like reading, is [a] muscle that atrophies [without] regular use,” and further that “[v]oting [is a] collaborative civics ritual in an atomized society [with] very few” of those. It is, he said, “[a]s much about membership as governance.”
I have to admit that I am somewhat perplexed by the idea of a “civic duty” that exists for no particular reason, just as an incidence of membership in society. Mr. Coyne’s examples of jury duty and taxes can be justified (if indeed they can be), on instrumental grounds. Jury trial is (so we think) a bulwark of liberty, while taxes are needed to keep government running and to help the poor or those otherwise in need of their fellow-citizens’ assistance. But instrumental justifications for a duty to vote, I have argued, do not succeed.
But let’s put that doubt to one side, and let’s stipulate that we can have some duties as a result of our membership in society, regardless of whether fulfilling these duties actually serves any useful purpose. And let’s stipulate that one such duty is to take public affairs seriously, to concern yourself with the way your society is governed, and to share this concern with your fellow-citizens. I’m actually very skeptical that we have such a duty. It seems to be, at best, an instantiation of a broader, and more plausible, duty to contribute to society ― but as Jason Brennan argues in his book on The Ethics of Voting and in a post over at Bleeding Heart Libertarians, we have any number of ways to contribute to society, not all of them having anything to do with politics or public affairs writ large:
For any given citizen, given what other citizens are doing and are good at doing, there will be an optimal mix of political and non-political ways for her to pay her debt [to society, assuming that there is one]. For some citizens, this will mean heavy political engagement at the expense of other pursuits. For other citizens, it will mean complete disengagement so as to free the citizen to pursue non-political activities. For most citizens, the optimal mix will be some combination of political and non-political engagement.
(I’m not sure, by the way, that prof. Brennan is even correct to say that “for most citizens” political engagement will be part of the “optimal mix.” The average levels of political ignorance are so high that “most citizens” may be doing more harm than good by becoming involved in politics in any way. But let’s put that to one side too.)
Anyway, let’s stipulate that we have a duty to become politically engaged together with our fellow citizens. Does it follow that we have a duty to vote? I do not think so. To be sure, voting is a way to fulfill this hypothetical duty, but it is not the only one. Surely, debating public affairs, whether just with your friends on Facebook or in some more public forum, is a form of political engagement. Surely, working for some organization that contributes to the public good, as it sees it, is a way of taking part in the polity’s affairs. I would, indeed, go further, and say that such ways of becoming engaged are actually much more significant that voting. I am pretty sure that I have contributed a good deal more to the res publica, over the last three and a half years, with this blog than I would by casting ― or, a fortiori, by spoiling ― a ballot next Monday. Perhaps we have, as Sean Hunt put it to me on Twitter, a “duty to consider” our options. But then what? If, having considered the choices on offer, you find none of them palatable, I do not think that you do anything wrong by staying home.
For those who, like prof. Forcese, worry that the civic instincts of the abstainers will atrophy without a quadrennial exercise in walking to the polling station, I think that a “duty to consider” or a duty to be engaged in public affairs should be enough. If you follow politics and think about it, you will surely not fail to vote if or when you finally see a party that actually deserves your support, or perhaps even one that is so much worse than the others that you vote strategically against it. It is interesting, I think, that a recent poll found that people who think that voting is a choice are not much less likely to vote as those who think that it is a duty. Among the former, only 5% said they would not vote, while 11% are undecided as to whom they will support. Among the latter it was 0 and 5%, respectively. (26) The absolute numbers are probably lower than they are in reality: overall, 72% of those who were eligible to vote in 2011 said they voted, while the true turnout rate was closer to 60% ― people lie to pollsters (and I wonder whether the purportedly duty-bound do not lie more than those who allow themselves the choice). But in any event, it’s not those who think that voting is a choice who fail to vote in large numbers: it’s those who “don’t know” whether it’s a choice or a duty. Among them, 19% say they will not vote, and 31% are undecided.
In short, voting is neither necessary to promote some ulterior good, nor in itself a duty. It is a right which, as I pointed out in this earlier post discussing the claim that we ought to vote out of gratitude to those who helped secure and defend our right to do so, like all other rights, we can choose to exercise or not. This choice should not be made lightly, but it can, and should, be made freely.
This is yet another post on the duty to vote. Here, I address arguments according to we have such a duty because if everyone votes, the quality of election campaigns and, possibly, of governance, will be better than under the current state of affairs, where some people vote, and others do not. This argument, like the information- and legitimacy-based ones that I addressed previously, is instrumental, in that it sees universal voting not as an end in itself, but as a means to achieve another desirable result. And indeed this result ― campaigns and governance (is there even a difference between the two anymore? was there ever?) that are oriented toward the public good rather than to pandering to specific segments of the population ― is a most desirable one. But can it justify a duty to cast a ballot?
Susan Delacourt has argued that if voting were mandatory, people tempted to engage in electoral chicanery destined to depress turnout among their opponents would refrain from doing so. Presumably, the same thing would be true even in the absence of a legal mandate, if they knew that everyone believed voting is obligatory. I have also seen suggestions that employers would more readily allow employees time to vote on election day. Yet it is already illegal to prevent people from voting, and employers already have a legal obligation to allow their workers three consecutive hours in which to cast their ballot. I do not understand how the existence of a duty to vote, whether legal or moral, would change the calculus of individuals already prepared to break the law.
Ms. Delacourt also worries that “[s]ome of the dumbing-down of discourse” that plagues our elections “has taken place because political campaigns have become preoccupied with simply getting out the vote (often with shiny baubles) rather than a debate of ideas.” Andrew Coyne has expressed the same concern, writing that “[a]ll of the parties would be … happy if voters outside their base got lost on the way to the polling station. Elections today are not about reaching out to uncommitted voters, so much as motivating yours — typically out of fear of theirs.” (Emphasis in the original)
Yet, tellingly, neither Mr. Coyne nor Ms. Delacourt has offered any evidence that the politics of nations with mandatory voting are more high-minded, or less prone to “the dumbing-down of discourse” or resort to wedge issues than ours. It is from Australia, the country that inspires the defenders of a duty to vote, that the Conservatives have imported Lynton Crosby, the purported guru of wedge issue campaigns ― though, in fairness, the use of wedge politics responds to much broader trends, which I briefly described here, and which affect all democracies, regardless of whether they make voting mandatory. The Australian habit of changing Prime Ministers every year, or perhaps after every poll, also does not strike me as a sign of good governance. There is, in short, little reason to believe that a duty to vote is a panacea, or even a moderately useful remedy, for what ails our politics.
On the contrary, Ilya Somin points out, a duty to vote might make things worse. The people who tend to abstain when voting is voluntary are on average more ignorant than those who vote and, as Jason Brennan notes, empirical studies suggest that even forcing people to vote “doesn’t cause uninformed voters to become any better informed.” An electorate enlarged by the existence of a duty to vote is thus a more ignorant one. The trouble is, as prof. Somin explains, that “[f]or fairly obvious reasons, relatively ignorant voters are more likely to be influenced by simplistic 30 second ads than relatively well-informed ones (who, among other things, tend to have stronger preexisting views).” After all, the problem for the parties does not end with getting voters into a polling booth. Even if the voters get there on their own, they must be made to pick one party rather than another. And if simplistic ads, wedge issues, and fear are the most effective means to do that, these are the means the parties will resort to. With voters who do not care very much about politics and only vote out of a sense of duty, this is even more likely to be the case than with others. A duty to vote, then, might mean more rather than less “dumbing down the discourse” and reliance on wedge issues.
A duty to vote will not improve the state of our electoral politics any more than it will make politicians take the interests or opinions of the voters into account, or make our democracies more legitimate. It will neither prevent those who are inclined to break the law to interfere with other people’s votes from doing so, nor discourage political parties from engaging in the sort of campaigning that debases our public affairs and prevents thoughtful discussion of policy issues. In short, in my view, a duty to vote simply cannot achieve any of the purposes that its proponents invoke to justify it. Having dealt with the instrumental arguments in favour of this duty, however, I still must address the deontological one according to which voting is simply a matter of civic duty. I will do that in the next post in this series, probably early next week.
I am continuing my series of posts about the duty to vote ― or nonexistence thereof. Earlier this week, I addressed what I called information-based arguments: claims to the effect that we must vote in order to contribute our views, either about what political option is best for us, or about which of them will make for better government in the general interest. I had addressed the gratitude-based arguments in an earlier post. Here I take on a different sort of argument, which I will describe as legitimacy-based. It is the idea that it is necessary for people to vote because the continuing legitimacy of our democratic political arrangements depends on widespread participation. If abstention rates are too high, democracy itself is at risk. This argument, in my view, is both empirically and normatively problematic.
Let’s start with the normative problem. The legitimacy-based government (like the information-based one) is an instrumental one: it considers that voting is a duty not for its own sake, but for a ulterior purpose. In order for democracy to endure and thrive, you ought to vote. But not everyone agrees with this purpose. A democratic society does not expect or require all of its members to be democrats. There are authoritarians in our midst, and there are anarchists. I happen to think that they are wrong; most people presumably think so too. But they are entitled to their opinions, and I do not see why they would have a moral duty (still less, of course, how one could justify imposing on them a legal duty) to nurture a political system with which they disagree.
Very well, you will say, but what of the majority who do believe that democracy is the best political system, or at least the worst except all the others? Don’t they have a duty to vote in order to reinforce this system? Indeed, there is some threshold of participation below which an electoral system can lose its legitimacy and will be in danger of being replaced by less democratic arrangements. The situation of Québec’s school boards is a case in point: the commissioners and chairpersons of the boards are elected, but in 2014, only 5.5% of the province’s voters bothered to cast a ballot ― and the government is now planning on scrapping the elections. (To be clear: I have no idea whether, in that instance, less democratic means worse.) But is the theoretical possibility of this happening enough to justify a duty to vote?
Nobody actually thinks that everyone must vote in order for an electoral system, or the result of a given election, to be legitimate. The Québec secession referenda were not illegitimate because turnout was “only” 85.6% in 1980 and 93.5% in 1995. Nor were Canadian elections grounds for legitimacy concerns when turnout fluctuated around 75%. Of late, however, it has been substantially lower ― around 60%. But for all the worries about the vitality of Canadian democracy that these numbers have provoked, they would be reasonably high for presidential elections (never mind, say, mid-terms) in the United States. I’m not sure anyone worries about the survival and legitimacy of democracy in the United States, at least not because of turnout figures ― though to be sure there is no shortage of people who would like them to be higher. The same goes, to the best of my knowledge, for Switzerland, where turnout in the three federal elections held since 2000 has consistently been below 50% (45.2% in 2003, 48.9% in 2007, and 49.1% in 2011).
All that to say that while there is some turnout threshold below which the viability of a democratic system can come into question, it is quite clearly situated well below the turnout levels actually observed in Canadian elections. Quite clearly, nothing like near-universal participation in elections is necessary for a well-functioning democracy. It is thus not at all clear that an individual’s commitment to democracy translates into a duty to vote. Besides, that commitment can be expressed in any number of ways other than voting, a topic to which I will come back in a subsequent post.
The legitimacy-based argument sometimes has a somewhat different focus, reflecting a concern not with the vitality of the democratic system as such, but with the legitimacy of specific governments. Thus Andrew Coyne worries that “‘[m]ajority’ governments are now formed in this country with the support of barely one in five adult citizens — about the same as elected governments a century ago, when women were not allowed to vote.” In his view, this amounts to “a crisis of democratic legitimacy.” As with the concerns about the legitimacy of democratic politics as such, it is not clear that the crisis is real. Was there a crisis of democratic legitimacy during the presidency of Bill Clinton, first elected in 1992 with 43% of the popular vote on a turnout of 55.2%, and thus the votes of 23.7% of the registered voters, re-elected in 1996 with 49.2% of the votes cast out of a turnout of 49%, and thus the support of 24.1% of the registered voters? If there was, why is it that more than 60% of the American people apparently approved of that job he had done by the end of his second term? Actually, I doubt that Mr. Coyne or others who trot out this particular argument really believe in it. It is a nice rhetorical flourish, and nothing more.
The need to preserve the legitimacy of our democratic system or even of the governments that it produces cannot justify a duty to vote even for those who accept that this need is a pressing concern ― which is not everyone in politically free and pluralistic societies. There are at least a couple of other arguments in favour of such a duty that I have not yet addressed, however. I try to do so shortly. And if you are worried that I will miss your favourite one, do not hesitate to tell me about it!
Once upon a time, I mused about whether Parliament could ban books as part of its regulation of election campaign spending. The specific question that interested me then was whether the exemption of “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” from the definition of “election advertising” in section 319 of the Canada Elections Act (CEA) could be abolished. But now, just in time for Banned Books Week, life ― or, rather, the Public Service Alliance of Canada ― has come up with a somewhat different censorship scenario.
La Presse reports that the Alliance has complained to Elections Canada about political commentator, consultant, and activist Éric Duhaime’s giveaway of 5000 copies of his book Libérez-nous des syndicats! (Free Us from the Unions!). Mr. Duhaime is apparently giving the books away for free in order to counteract an anti-Conservative (and pro-NDP) campaign by Québec’s largest union, the FTQ, to which the Alliance is associated. In the Alliance’s view, the anti-union book falls with the definition of “election advertising” in section 319, and since it is being away for free during the election campaign, the exemption for books sold “for no less than [their] commercial value” does not apply. Since Mr. Duhaime has not registered with Elections Canada to advertise as a “third party” as section 353 of the CEA requires, he is, the Alliance says, acting illegally.
Mr. Duhaime says that he is not campaigning for or against a political party ― only against unions ― and thus is not infringing the CEA. But that’s not quite obvious. The CEA deems to be election advertising
the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated. (Emphasis mine)
The key issue, it seems to me, is whether Mr. Duhaime’s book (which, to be clear, I have not read) can be considered as “tak[ing] a position on an issue with which a registered party … is associated.” Is the anti-union position Mr. Duhaime expresses “associated with” the Conservatives ― as the Alliance seems to believe? Or is the pro-union position Mr. Duhaime combats “associated with” the NDP? I’m not sure, but I don’t think that the argument is an impossible one to make. As best I can tell, there is no case law interpreting s. 319 generally or the notion of “an issue with which a registered party or candidate is associated” in particular. And these terms aren’t exactly self-explanatory.
Which, in my view, is a big problem. Here we have a statutory provision that can be applied to punish speech, to impose fines on someone whose “crime” is to give away a book ― and we don’t actually know what it means. Mr. Duhaime probably enjoys the free publicity that comes with the complaint, but not everyone will feel that way. The problem of chilling effect from speech-restricting legislation that is imprecisely worded and thus difficult to interpret in advance of application is a real one.
Here’s another issue with the drafting of s. 319, while we’re at it. One of the exemptions from the general definition of “election advertising” concerns “the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views.” So suppose that Mr. Duhaime had put the text of his book on a freely-accessible website. That would pretty clearly fall within the exemption ― even if the website were only set up for the duration of the election campaign, since the statute says nothing about internet communications having to be “regardless of whether there was to be an election,” as it does for books. But now consider a somewhat different example. Suppose that, instead of just putting the text of his book on a website, Mr. Duhaime makes his book available as an ebook, say through the Kindle store ― again, for free. Does that count as an illegal “distribution of a book … for … less than its commercial value,” or as a legal “transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views”? I have no idea. On the one hand, it’s not clear that an ebook ought to be treated any differently from a dead-tree book. On the other, it’s equally unclear why a text in .azw, or .mobi, or .epub format should be different, for the purposes of election law, from the same text in .html format. I guess it would be a fun question to put on a statutory interpretation exam, if you are a slightly sadistic professor.
But again, laws that restrict expression, especially expression on political issues, should not be written for the benefit of slightly sadistic professors of statutory interpretation. If expression must be restricted, as the Supreme Court believes the expression of “third parties” ― that is citizens and organizations who are not candidates or political parties ― must be restricted, at least the restrictions should be clear and narrowly defined. Citizens should not have to guess; nor should they be at the mercy of complaints by other citizens or groups who simply happen to detest their politics.
The shoe was once on the other foot. After the 2003 election campaign in Québec, another union associated with the FTQ was prosecuted by Québec’s election authorities for distributing a pamphlet criticizing a party that took an anti-union position ― a party whose leader Mr. Duhaime was then advising, as it happens. The union then challenged the constitutionality of the Québec legislation on third-party participation in election campaigns ― unsuccessfully. Now, it would seem, labour has learned to use this sort of law as a weapon against its enemies. (In fairness, however, Québec’s law was even more restrictive than the CEA. A union’s distribution of a pamphlet to its own members would not be a violation of the federal statute.) But we should, I think, be concerned that our election campaigns are in danger of becoming twelve-week-long periods for banning books.
I am finally beginning my promised series of posts arguing that we do not have a moral duty to vote. In this post, I address arguments in favour of such a duty based on the idea that elections are an information-gathering mechanism. When the information collected through elections is incomplete because some people did not vote, governance will be defective and likely skewed. To avoid these problems, everyone has to vote. Such arguments come in distinct flavours, and I will address two of them specifically, but they also suffer from common problems.
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The first and perhaps more common version of the information-based argument in favour of a duty to vote starts with the premise that by voting we provide those who look at electoral outcomes ― including, first and foremost, the politicians whose jobs depend on them ― with information about our needs and preferences. People who stay home fail to do that, and politicians ignore them in their decision-making as a result. Thus Susan Delacourt has written that “a disengaged public makes it easier to govern — or worse, ignore troublesome issues and constituencies (youth, for instance).” The tendency of some groups not to vote, and the (alleged) tendency of politicians to ignore their (alleged) interests as a result is a particular concern of those who favour this argument.
Jason Brennan has addressed this concern in some detail (he calls it the “demographic argument”) in a post over at Bleeding Heart Libertarians. The most important point he makes there is that “the argument seems to presume that voter[s] vote for their self-interest. But we have overwhelming empirical evidence … that they don’t vote their self-interest. Instead, they vote altruistically, for what they perceive to be in the national interest.” And while the people who do vote are likely enough to be mistaken about what is in the interest of those who don’t, people who tend not to vote and, in particular, “[t]he disadvantaged are much more likely to be mistaken in their beliefs about what it takes to help them,” (emphasis Brennan’s) because their levels of political ignorance are even higher those of the people who do vote. If these people vote out of a sense of duty, politicians might start taking their expressed preferences into account (though as I’ll explain below, that’s doubtful), but that won’t make them better off. A duty to vote will thus not make for better or fairer governance.
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The other version of the information-based argument in favour of a duty to vote gets off to a better start, because it assumes that voters are indeed non-selfish. As Andrew Coyne has put it,
Voting isn’t like buying a soft drink. When you cast your vote, you aren’t just making a choice about you and your needs. You’re helping to make a collective decision about providing for everybody’s needs. The broader the sample of voters, the more representative of everybody it is likely to be — rather like the census — and the greater the combined stock of experiences and insights brought to bear. Conversely, if some “free ride” on others’ willingness to vote, the whole of the community suffers. You owe your fellow citizens your counsel, in other words. You benefit because they vote. You owe them no less in return — just as you owe them your share of the cost of public services.
The trouble with this reasoning (Prof. Brennan has called it the “public good argument”) is that the problem of political ignorance is even more acute for it than for the “demographic” one. If what we care about is collective wisdom, then some people ― especially, as it happens, people who tend not to vote, but also, in reality, a great many of those who do ― would actually help the community not by voting, but by staying as far away from the polling stations as they can.
Now, people who find this argument attractive will often say that the whole point of a duty to vote is that it will get people to become more engaged with and less ignorant about politics. Trouble is, as Prof. Brennan points out that, that “there are a bunch of empirical studies on this looking at various natural experiments, and the answer is no, compulsory voting doesn’t cause uninformed voters to become any better informed.” And it’s pretty obvious why this should be the case. Acquiring information relevant to voting is difficult. There is a lot to learn, both about the world and about what the politicians plan on doing to it. Learning takes time, energy, and ― a non-negligible point ― a willingness to confront “inconvenient truths” that make you uncomfortable with your prior beliefs. As Ilya Somin pointed out, it is “rational for most voters to stay ignorant, given the low chance that their knowledge will make a difference.” It is telling, I think that the defenders of a duty to vote mostly just say that it will spontaneously cause people to become better informed and more engaged ― not that there is in fact a duty to do so. They realize that, unlike the duty to vote, a duty to become a competent citizen is a very onerous one. (Of course, it is also possible to be an informed and engaged citizen without voting. I’ll develop this thought further in a separate post.)
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The arguments and counter-arguments I have canvassed so far all presume that voting is a reasonably effective information-gathering mechanism. To think that voting tells politicians what the voters want or that it is a way of aggregating their wisdom about how best to run government, you need to think that it produces a relatively intelligible message, and also that politicians are able and willing to actually understand and act on this message. But these assumptions are unfounded.
Voting in an election is actually an incredibly bad way of sending any sort of message to anyone. It is a choice between, realistically, two or three options; perhaps a few more, depending on the voting system and the circumstances of each election, if you pretend that every candidate has a chance. And each of these few choices ― certainly each of the ones that have any chance of winning ― comes with a full panoply of policies (however vague) on all sorts of topics (however trivial), boasts (however exaggerated) about its leader’s character , and insults (however unfair) for its opponents. A vote can be based on any of these policies, boasts, or insults, singly or in combination. Or it can be based on whose name came first on the ballot, or some other utterly irrelevant consideration.
So how do we know what message a given set of electoral outcomes conveys? If, say, the Conservatives win on October 19, will it be because they hate the niqab, because Stephen Harper is the devil we know, or because Justin Trudeau is just not ready? That’s a trick question: nobody will know the answer. As Hans Noel explains in a very useful essay called “Ten Things Political Scientists Know that You Don’t,” “[t]hese narratives are created after the fact by people who want you to think one thing or another.” Even if the adage vox populi vox dei is true, an electoral outcome is no more than a Pythia’s mumbling ― to be interpreted by self-interested priests.
Things get even more muddled once we account for the possibility that people who show up at the polling station out of a sense of duty will not actually vote for anyone at all. Canadian advocates of mandatory voting tend to favour the inclusion of a “none of the above” option on the ballot. And those who believe that there is a duty to vote will typically say, like Mr. Coyne, that “[y]ou could … decline the ballot, or spoil it, or otherwise register your dissatisfaction with the choices on offer” ― you just need to show up. Needless to say, if you are voting “none of the above” or, a fortiori, if you are spoiling your ballot, you are not sending much of a message, whether about your own interests or what you think the country’s interests are. (By the way, Australia, a country from which the proponents of mandatory voting often say they draw their inspiration, does not have a “none of the above” option, and actually forces voters to rank all the candidates to cast a valid ballot. If both a Communist and a Marxist-Leninist are running in your riding, you need to say which you like more. Although there no Communists and no Marxists-Leninists in Oz. Their parties are actually much crazier than that.)
If you think that I just dislike democracy, or our version of it, you are mistaken. I share Churchill’s opinion that democracy is an imperfect political system, and indeed the worst one ― except all the others. I appreciate the blessings of political choice ― such as they are. I just don’t think that an electoral system’s purpose is to send any deep messages to the politicians or to anyone else. It’s to provide a mechanism for choosing people who will make decisions and, importantly, to ensure that the people in charge know that they are replaceable on relatively short notice, which tends to keep them somewhat honest. Our political system does that reasonably well. Pointing out that it’s useless at something it’s not meant to do is not a criticism at all.
There actually exists a much better mechanism for aggregating people’s preferences and putting their knowledge in common. Unfortunately, politicians tend to impede rather than support its functioning, and do their utmost to ignore its lessons even when these are clear. It’s called the market. (Nobody thinks, however, that a person is “free riding” on the market’s information-gathering by refusing to participate in it and thus contribute his or her “insights” about what the prices in that market should be.) Mr. Coyne points out that “[v]oting isn’t like buying a soft drink.” That’s quite true, but not in the way Mr. Coyne suggests.
As prof. Somin often says (sorry, I’m too lazy to track down a specific post for reference), when people make market decisions, they have a strong incentive to become informed about the choices available and their consequences, because the decision they make will affect them a great deal. Voters lack this incentive, because the chance of a single vote affecting anything is very small. (That is true, by the way, under any voting system ― not just first-past-the-post.)
Moreover, the market allows for much more fine-grained decision-making than do elections. Getting a can of Coke in preference to a Pepsi doesn’t commit you to, say, buying an iPhone instead of a Samsung, and leasing a Ford car instead of just taking the bus. But voting does ― you cannot vote for, say, the Conservative policy on health transfers, the NDP policy on anti-terrorism legislation, the Liberal policy on marijuana, and none-of-the-above on kowtowing to the dairy cartel. Indeed, voting for a party is the equivalent of committing to Coke, Apple, and Ford for the next four years.
Again, that’s not to say that we should scrap voting altogether. The market isn’t the best mechanism for making every decision. But so far as information-gathering is concerned, it is greatly superior to voting. If we really cared about having as much information as possible about people’s preferences, and about maximizing the use of their individual knowledge for the public good, our governments would regulate less, and let the markets decide more. Instead, even when the market sends very clear signals, such as that many people prefer Uber to the taxi cartels, politicians turn a blind eye to these signals, unless they actually try to stamp them out by regulating even more. Politicians, I conclude, are not actually interested in information about what people want. They will say otherwise, of course, but actions speak louder than words.
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Making the case for a duty to vote on supposed information-gathering properties on the electoral process is a perilous exercise, because elections are simply not are intended to aggregate information. They serve to choose Parliaments and, indirectly, governments. A vote does not communicate much of a message either about a person’s own needs and preferences or about his or her views as to how the country ought to be governed. When you vote, nobody can tell what it is that you are trying to say. Besides, when people make their views clear in the marketplace, politicians tend to simply ignore them, or even try to eliminate the market’s information-gathering abilities. The information-based case for a duty to vote is not a persuasive one.
But, you might say, it’s not the real case for a duty to vote. Please stay tuned. I’ll address other arguments over the next few weeks. And if you’re worried that I might not address you personal favourite, please get in touch, and tell me about it!
There’s exactly one month to go until election day. It’s as good a moment as any to announce a series of blog posts that I will publish over the next few weeks, to argue that, contrary to what is often said, there is no moral duty to vote or, in other words, that it is not wrong to stay home on October 19. I won’t be saying that you ought to abstain. If you believe that there is a candidate or party who will move the country at least somewhat closer to your policy preferences, by all means, go and vote for him/her/it. If you believe that there is a candidate or party who will move the country noticeably further away from your preferences than the others, then you should probably consider voting strategically to prevent this from happening. The claim I will be defending is that if you think that all the options on offer are roughly equally good or, more likely I suspect, equally bad, then you are under no obligation to vote for one them, or even to go and spoil your ballot.
I will be making this argument on grounds of political morality, not law. Of course, if there is no moral duty to vote, then it would be wrong for Parliament to require people to do so, as the Liberal Party, in particular, has mused about doing. On the other hand, even if there were a moral duty to vote, it would not follow that Parliament would be justified in using the threat of legal sanctions to force people to comply with it. Nor would it follow that the imposition of mandatory voting would be constitutional. The case for a moral duty to vote should be easier to make than that for the enactment of a law mandating voting. It is this easier case that I will address.
More specifically, I will address, in separate posts, a number of arguments I have seen made in favour of a duty to vote (or indeed of mandatory voting laws, which I take to presuppose the existence of a moral duty to vote). I have addressed one such argument a couple of months ago, when I argued against a claim to the effect that we must vote in order to honour and express our gratitude to the people who helped win and preserve the right to vote, whether against domestic opposition or foreign enemies. Over the next few weeks, I will address three other such arguments. One holds that we must vote because election results are useful information about the state of affairs in the nation, and we owe it, whether to our fellow citizens or to the politicians whom we elect, to do our part in generating this information. A second, perhaps somewhat similar, argument is that the existence of (and actual compliance with) a duty to vote helps improve the quality of election campaigns ― an improvement which we are in dire need of, and from which all would benefit. The third argument I will address is that it is necessary for us to vote in order to preserve the legitimacy of our democratic government.
Perhaps this list of arguments for a duty to vote is incomplete. If I am missing your favourite one, please let me know. I am open to expanding my post series, and even to changing my mind if you persuade me to do so. (Please do not tell me that we should all just vote for your favourite candidate, or against the one you particularly hate. I have done my best to keep this blog non-partisan, and remain committed to this position.) Feel free, as well, to suggest related topics that I might cover as part of this series. For instance, I will probably have a post on people who, far from accepting that they have a duty to vote, believe that they actually may not do so, even though the law says otherwise. And of course, I will have a post to respond to comments and criticism, if you are so kind as to provide some.
In short, I would like this to be a conversation, something like a slow-motion seminar maybe. Whether or not we convince each other in the end, at least the quality of our arguments on this topic, which is pretty sure to be much discussed after, if not before, election day, will hopefully be better as a result.