Just What Constitutes a “Majority”?
It’s easier to say “in a democracy, the majority rules,” than to know what a majority actually is. The significance of this to referendums is that, because ballot questions address transformative change, some believe the level of support required for “majority” approval should be higher than the “simple majority” norm. Our general “majority” standard is a number higher than half, even as close as 50 percent plus one of all votes cast. In Canadian history, a number of significant decisions have turned on a single vote.
This threshold concern about “majorities” was discussed in 1991 by the Beaudoin-Edwards parliamentary committee on constitutional amendments. In 1992 parliamentarians again debated the issue when considering the Mulroney government’s enabling legislation for a referendum on the Charlottetown Accord. The debate about numbers that count has posed a challenge ever since 1898 when the concept that a referendum focusing on fundamental change required not just an overall majority of votes but also a majority of provinces. It has continued since, as well, in B.C. and P.E.I. referendums where governments imposed higher vote requirements, and in the ongoing battle between Ottawa and Quebec’s separatists over what is meant by “a clear vote” being needed for a province to leave Confederation.
Toss a Coin or Call a New Vote If Result Tied?
Sometimes in voting to elect a representative, or on a measure in a legislature or council chamber, a tie vote occurs. The rules for breaking ties vary. One simply stipulates that the measure getting equal Yes and No votes is defeated on the grounds that it didn’t gain majority support.
Another rule, however, calls for a “deciding vote” to be cast by an identified official, such as chairman of the council meeting or the legislature’s presiding officer. In some cases, this rule might stipulate that this presiding official not vote except to break a tie. In other cases, though, where that isn’t the case, this person might end up casting a second vote to tip the balance one way or the other.
Tied elections for a representative in our legislatures have sometimes come under a third rule: the toss of a coin. This efficient expedient saves the time and cost of a second election with all voters having to cast ballots again. Rather than imposing a personal burden on a single individual to cast the “tie-breaking vote,” the heads-or-tails verdict lets fate decide.
However, sometimes an electoral tie is broken simply by a recount, when errors in counting, or in deciding whether or not a ballot was properly rejected as “spoiled” according to a list of criteria, will reverse the original count by a few votes. This is why election and referendum statutes in Canada refer to “valid votes cast” as being the only ones that can be counted. Validity pertains to both the qualifications of the voter and to proper marking of the ballot paper. A voter is determined to be eligible on the basis of being (i) a Canadian citizen, (ii) of the age of “majority,” and (iii) “resident” in the voting area, which means “ordinarily resident” and has a dozen indicia for determining “residency” in the case of temporary workers and seasonal students, new arrivals, and homeless people. That “age of majority” to qualify for voting, sometimes called “legal age,” itself has changed over time, with intermittent amendments to the Election Act reducing voting age from twenty-four, to twenty-one, then nineteen and eighteen, even in some instances sixteen. As for creating a “valid” ballot paper, these rules, too, have changed over time. They’ve included marking the ballot with pencil only; marking with an X only; marking inside the square or circle beside a candidate’s name, not outside; marking the ballot for no more than a specified number of candidates; and not writing anything on the ballot. Any ballot paper breaking these and other rules was deemed “spoiled.” So for many years was an unmarked ballot, although now these are deemed “declined” ballots in some Canadian jurisdictions and counted and reported separately as such. Ever since the right to a secret ballot was introduced, replacing the earlier Canadian practice of an elector openly declaring his support for a particular candidate at the “hustings” or voting place, a host of other administrative and security standards have also been developed to prevent voter fraud and preserve sanctity of the ballot.
Sometimes a tie between two candidates, following recounts, is resolved through a second election.
All these rules about voter qualification and validity of cast ballots apply to referendums just as to elections, although the conundrum of a dead tie hasn’t yet arisen, except with some municipal ballot questions. There are more wrinkles, but that’s enough to make the point that even a “simple majority” doesn’t quite live up to its name.
Raising the Bar: “Super-Majority” Makes Change Abnormally Hard
Sometimes a constitution or statute dealing with balloting to approve a change stipulates that a measure will only carry if approved by a higher than “simple majority” count, such as 60 percent, or sometimes even two-thirds, of the votes. This super-majority exception is imposed because powers-that-be have determined certain changes are so significant they must clear a higher hurdle of voter approval than normal.
The criteria in our Constitution governing amendments, for instance, depend first on what the subject is, and second, how many approval votes are needed by Parliament’s two houses and the ten provincial assemblies. For some measures, motions of approval must be voted by both houses of Parliament and also reach or exceed approval with motions passed by legislatures in “seven provinces having more than half the population of Canada.” For other measures, such as abolishing the Senate, “unanimity” is required, meaning approval in all twelve of these legislative bodies. However, these “unanimity” votes don’t require that every last member in Parliament and each provincial legislature approve — just a simple majority of them in each assembly.
Basically, the “super-majority” requirement adds a surcharge, the price that those defending the status quo exact for making change. For example, referendums in British Columbia on changing the electoral system had to be approved by 60 percent of voters in 75 percent of the electoral districts. This abnormal standard was replicated for Prince Edward Island’s referendum on the same subject. It can be called “abnormal” in light of other significant referendum decisions in British Columbia, such as granting women voting rights or harmonizing federal and provincial sales taxes, which needed only 50 percent plus one, aggregated across the entire province, to win.
Referendums on electoral reform where an exceptional super-majority is required are a ruse. The legislatures enacting such higher hurdles themselves pass the measure by simple majority, as they do all other matters, including many of transcending nature. While it might thus appear that a government is turning an important issue over to the people so electors themselves can make the choice, this double standard “majority” approval requirement is a taunting abuse of the ballot-question process. When major voting system changes were previously made in Canada, at the federal and provincial levels — for everything from proportional representation to multi-member ridings — it was by a simple majority vote in the legislature. For the electoral system referendum in British Columbia, the people’s assembly that prepared the new voting system urged that it be endorsed by a referendum and didn’t want anything other than a simple majority to decide the matter. It was the same in Prince Edward Island where a similar process occurred. In both provinces, imposing the super-majority hurdle was the incumbent government’s idea — governments now self-protective of the existing electoral system under which they’d been elected.
Another Hurdle as Safeguard: The “Double Majority”
Similar to the concept of a “super majority” in providing a restraint on change is the requirement for approval by a “double majority.” While this latter term can generally describe needing a majority vote in a majority of ridings, it is also used in Canada for measures requiring consent of both French-speaking and English-speaking communities, and so is related to questions of protecting minorities. This concept was much in play in Canada during the 1850s and 1860s when Canada East (Quebec) and Canada West (Ontario) legislated together. More recently it has had a number of specific formulations. One was the concurrent or double-majority requirement embedded in the Charlottetown Accord to approve measures materially affecting the French language or culture of Quebec. Any such measure, to carry, needed a double majority in the Senate, meaning approval by both the majority of francophone senators voting, and a majority of all senators voting, on the matter. Another example relates to separation referendums, and the provisions of the Chrétien government’s Clarity Act, a statute based on concepts argued before the Supreme Court of Canada and adopted in the justices’ ruling on requisite levels of approval for a province to separate from Confederation.
Should Concurrent or Double Majorities Be Required?
A fear in Canada’s regions is that, though a population might be strong within its locale — farmers on the Prairies, fishers in the Maritimes, French-speaking Canadians in Quebec — it risks being swamped by a single electoral tsunami. To counter that possibility, the concept of “concurrent majorities” emerged.
The concurrent majority doctrine requires approval from each of two conflicting interests in society on any major proposal, which in some respects makes it similar to the “double-majority” idea. The concurrent majority system was most comprehensively outlined in the mid-1800s by American John C. Calhoun, a political theorist and Democratic vice-president of the United States, who was devoted to ensuring that the more populous North wouldn’t override the interests of the American South, including the matter of owning human slaves. Calhoun’s formulation incorporated both qualitative and quantitative elements so that no government action could be taken except with widespread consent across all sectors and strata of the community. Despite elaborate elements in Calhoun’s formula for “concurrent majorities,” it boiled down to the southern and northern communities having veto power against the other, meaning the South’s numeric minority couldn’t be trumped by majority rule. Calhoun asserted that this system could more fully “collect the sense of the community” and therefore “aid and perfect” the right of suffrage — a Democrat’s grandiose cloak for preserving slavery.
The Constituency of Voters Also Determines “Majority” Outcome
Of overriding importance, if a referendum is to produce a legitimate and accepted outcome, is determining the “constituency” of voters qualifying for a say on the ballot issue.
Voting for MPs and provincial legislature representatives is organized by electoral district, with geographic boundaries that are redrawn every decade or so (after new census reports are available at ten-year intervals) to ensure community of interest for areas within the borders, ease of travel and communication for electors in each district, and relative population balance between all districts. When it comes to voting on ballot issues, using electoral district boundaries is often done, yet it isn’t always the pattern.
For prohibition votes under the Canada Temperance Act, the constituency was a municipality, a subunit of a normal provincial or federal electoral district. For some provincial-sponsored referendums, the constituency has been a region within the province consisting of several electoral districts, but not all the province’s ridings. For votes on farm issues, the “constituency” is based on the agricultural product rather than geography, for example, a vote on wheat and barley marketing by farmers of the three Prairie provinces and Peace River district of British Columbia who grow these crops and fall under the jurisdiction of the Canada Wheat Board. Likewise, for marketing issues to be decided in sectoral referendums by votes of producers of peaches, pears, plums, asparagus, or other such produce in Ontario, the “constituency” qualifying to ballot on those questions are producers of those fruits and vegetables no matter where they farm within the province, but those farmers only.
In British Columbia, where First Nation leaders felt only aboriginal peoples should constitute the constituency voting on land claim settlements, not the entire provincial electorate, defining the “constituency” of voters merged with related considerations about voters needing to have a direct interest in the issue at hand and about minority rights being safeguarded. That is why holding a province-wide referendum on land claim negotiations, or indeed on any settlement agreement resulting from negotiations by a First Nation with the provincial and federal governments, was opposed in British Columbia when first proposed in 2001. The provincial legislature’s Committee on Aboriginal Affairs conducted public hearings at Chilliwack and Vancouver on treaty referendum questions that October to listen “to all British Columbians” and engage “in a constructive and useful discussion to reinvigorate the treaty negotiation process.”1
At that time, among First Nations leaders opposing a province-wide referendum on the agreement that the Nisga’a had finally reached after a quarter century of negotiation was Wally Braul. President of the Victoria-based Aboriginal Rights Coalition, Braul called such a voting constituency not only “ill conceived” but one that amounted to “an act of bad faith.” With twenty-five years of negotiations, and many compromises being made “by all sides” to reach the Nisga’a treaty, including significant concessions by the Nisga’a, a province-wide referendum could not, he said, “adequately portray the real choice that must be made to obtain closure on these land rights negotiations.”2
The following year, when the Liberal government of Premier Gordon Campbell presented such a ballot question to the entire provincial electorate, the Union of British Columbia Indian Chiefs led a boycott of it, as already discussed, while other First Nations representatives initiated court challenges based on grounds that essentially boiled down to their belief that the voting constituency wasn’t appropriate.
A different kind of “battle of the constituencies” arose on the Prairies when voting took place on the monopoly marketing system for wheat and barley. Only directly affected farmers qualified as the constituency for casting ballots about the Canada Wheat Board. This vote was intended to counter the Conservative government of Prime Minister Harper, whose policy was to end the Wheat Board’s monopoly and provide grain growers freedom of choice in marketing, either by continuing with the Wheat Board or selling on the open market themselves. In this contest of ballots, the federal government pointed to its electoral mandate — from a constituency that included more than grain farmers — as its trump card to proceed.
“Counting Areas”: Another Factor in Determining Majority Approval
Electing our representatives is necessarily tied to geographic entities, and so the reporting of elections is done by riding, but there is no reason why the results of voting on a ballot question by the relevant constituency need be reported on a riding basis, even though the electoral districts are the most efficient units for actually conducting the balloting using established voters’ lists, polling stations, and trained officials.
With referendums, indeed, one can make a strong case for reporting the aggregate vote on the largest unit possible: provincially for province-wide referendums, all of Canada for national votes. Because the electorate has been deemed to form a unity, the collective verdict will, by majority count, determine approval or rejection. In provincial and federal elections, the overall result is reported for party popular support and seat counts on a province-wide or Canada-wide basis, because this larger picture is essential. The largest counting area is even more germane to referendums, a point that has long been understood in the politics of ballot totals.
“Unless there is a majority in every province in the Dominion in the affirmative,” asked George Foster, a New Brunswick MP who’d been Canada’s finance minister in John A. Macdonald’s Conservative government and in 1898 was debating Laurier’s prohibition plebiscite from the Opposition benches, “would the government consider it did not have a mandate from the electorate of this country to introduce a prohibition bill and carry it into law?”
Or, as an alternative, might the total popular vote alone count as the majority view? “Is it to be considered that the decision of the majority of the total electorate,” Foster pressed, “if given in the affirmative, will constitute a mandate to this Government sufficiently clear to demand for the people of Canada a prohibitory law?”
Clearly, the “counting area” from which referendum results are reported adds a significant dimension when interpreting voter support. It is different from an election count that chooses one representative per electoral district to a legislative body. In a referendum, the people in all electoral districts collectively make a decision about a single issue. For a representative, the edge of victory depends on the count in the riding; for the referendum, it’s generally the overall popular vote, unrelated to constituency boundaries, that determines if Yes or No wins. The recent Canadian exception is provincial referendums on electoral systems with a double-majority requirement. Thus a strong case can be made that the votes counted in each electoral district should be tabulated centrally, for the entire province or the whole county, and reported that way. We voted on the Charlottetown Accord as Canadians, not as residents of particular electoral districts, even though that subdivision served the practical administration of casting and initial counting of local ballots. Even in electoral districts, the numerous polling districts make their count and then report it to the central office of the returning officer. For referendums, the better approach is to apply this very same idea on a larger scale.
In our diverse regional land, whether for national or provincial referendums, there are reasons to use counting areas larger than individual constituencies, even if smaller than the single aggregated whole. A reward of holding a referendum is for citizens as well as governments to see and appreciate regional differences, because that reality must be accommodated in governing a federal state. Our three national referendums used provincial boundaries as midpoint tabulating areas, even though votes were first counted in the electoral districts. In 1898 and 1942, this method revealed the gulf between Quebec voters and those in other provinces on alcohol prohibition and wartime conscription. This information in turn enabled all Canadians to understand, even if they didn’t agree at the time, why Prime Ministers Laurier and King proceeded with extreme prudence in light of the recorded differences in “majority” support.