2007 Report On Vote Distribution

Is Every Ballot Equal? Visible Minority Vote Dilution in Canada Michael Pal & Sujit Choudhry Faculty of Law, University of Toronto March 4, 2007 Metropolis Conference

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Outline Question: does under-representation of urban Canada & largest provinces also entail under-representation of visible minority voters? Allocation of seats in the House of Commons: no voter equality „ „ „

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Evidence of visible minority vote dilution „ „ „ „

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Inter-provincially: Constitution Act, 1867 Intra-provincially: Electoral Boundary Readjustment Act (EBRA) Weak judicial oversight: Carter; Raiche Definitions National Provincial The Future: The Naturalization Scenario

Reform Proposals „ „ „ „

Amending the EBRA Advocacy before boundary commissions Increasing size of the House of Commons Charter litigation?

The Question (I) „

Although all adult citizens have Charter right to vote, worth of vote depends on where they live „

Inter-provincial inequality: under-representation of Alberta, BC and Ontario because of Constitution Act,

1867 „

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Intra-provincial inequality: rural areas overrepresented vis-à-vis urban areas because of EBRA how boundary commissions have interpreted it and operated under it

Deliberate features of electoral system: why? „

Inter-provincial inequality: ineffective Senate (Lortie) „

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If weak Senate puts pressure on representation in House of Commons, would Senate reform alleviate that pressure?

Intra-provincial inequality: protect rural minority

The Question (II) „

An old debate but recurrent debate „ „

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Conservative Party election platform 2006 ON testimony, Special Senate Committee on S-4

Re-examine in light of four demographic trends „

Visible minority (vis min) pop’n increasing „ „ „

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13.4% (2001 census) 25% increase from 1996 vs. 4% overall e.g. South Asians (37% increase)

Vis min pop’n growth fueled by immigration „ „ „

1.8 million immigrants between 1991 and 2001 Accounts for most of Canada’s population growth 73% of immigrants from vis min groups

The Question (III) „

Pop’n growth largely concentrated in ON, Alta, and BC „ „

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83% of nat’l growth b/w 1981 & 2001 Remaining parts of Canada: decline relative pop’n of smallest 6 provinces; decline in absolute pop’n in NS, PEI, NB, NS, NF ON, Alta, BC home to 83% of vis min pop’n, although only 62% of total pop’n = vis min pop’n growth focused in Canada’s largest provinces

Canada increasingly urban = home to vis min pop’n „ „

80% of Canadian lived in urban areas (2001) 64% of Canadians lived in Census Metropolitan Areas (CMAs) „

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95% of vis min pop’n

33% of Canadians lived in Montreal, Toronto, Vancouver „

73% of vis min population

The Question (IV) „

Questions „

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Does the under-representation of largest and fastest growing parts of Canada (ON, Alta, BC and urban Canada) in order to protect regions and rural areas come at the cost of the under-representation of visible minority population? Given continuing immigration, will this phenomenon grow?

A new question „ „

no one has ever tested this before the democratic reform literature and reform bodies (BC Citizen’s Assembly, Ontario Citizen’s Assembly) have not considered this problem

Distribution of Seats (I) „

Seats allocated in 2 step process „ „

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1st: Inter-provincially 2nd: Intra-provincially

Inter-provincial process „ „ „

rules set out in Constitution Act 1867 Section 51(1): total pop’n divided by 279; seats assigned proportionate to share of nat’l pop’n BUT two special clauses „

Section 51A: Senate Floor „

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Section 51(2): Grandfather Clause „

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no province can have fewer MPs than Senators no province can have fewer MPs than in 33rd Parliament (1976)

Special clauses undermine voter equality

Distribution of Seats (II) „

Who benefits from special clauses? „ „ Æ Æ

Senate Floor: NF (1), PEI (3), NS (2), NB (3) Grandfather Clause: NF (1), NS (1), PQ (7), Ma (4), Sask (5) all provinces except ON, BC, and Alta provinces in relative & absolute pop’n decline

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Quantifying the impact of the special clauses

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Special clauses growing in importance

ƒ ƒ ƒ ƒ ƒ „ „

Average riding size in 10 provinces = 107220 Provincial averages vary enormously BC = 108548, ON = 107642, Alta = 106243 PQ = 96500, Ma = 79970, Sask = 69924 NS = 82546, NF = 73276, NB = 72950, PEI = 33824 1996: 20 MPs = 6.6% of House 2003: 27 MPs = 8.8% of House

Distribution of Seats (III) „

Intra-provincial allocation: EBRA boundaries determined every 10 years by independent boundary commissions „ one commission per province „ 3 members – increasing professionalization „

Chair is judge selected by Chief Justice „ Speaker of House of Commons selects 2 „

consultation – public and MPs „ 2/3 of initial maps redrawn (Courtney) „

Distribution of Seats (IV) „

Boundary commissions tend to over-represent rural areas „

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Boundary commissions allowed to vary ±25% from provincial average in drawing boundaries Result: smallest riding can be 60% size of largest riding within a province Compounds inter-provincial inequality Eg. Brampton-West Mississauga 134, 405 vs. Timmins-James Bay 52,425 vs. Cardigan (PEI) 22,200

Distribution of Seats (V) „ „

Courts have not promoted voter equality Charter: intra-provincial inequality contravenes s. 3? „

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Sask’s proposed map guaranteed over-rep for rural areas Challenged on basis of “one person, one vote” theory SCC: “effective representation”, not one person, one vote Assumption: governed federal boundary commission process

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Raiche v. Canada (FCTD, 2004)

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Carter v. Saskatchewan (SCC, 1991)

Boundary commissions ultra vires if pursue equality? „ „ „ „

NB Commission decided to limit variance to ±10% moved francophone district to predominantly anglophone riding Raiche: EBRA required Commission to consider larger variance to protect community of interest Our view: misreading of EBRA

Urban Visible Minority Voters „

Urban: Statistics Canada definition „ „ „

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Visible minority: Employment Equity Act „

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Look at census blocks within a riding Block is urban if at least 1000 people and 400+people/sq. km If 51% of blocks were urban, then riding is urban “Persons, other than Aboriginal peoples, who are non-Caucasian in race or non-white in colour”. Regulations define this as “Chinese, South Asians, Blacks Arabs, West Asians, Filipinos, Southeast Asians, Latin Americans, Japanese, Koreans, and other visible minority groups, such as Pacific Islanders”.

Voters as the unit of analysis, not total population

National Vote Dilution „

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1996: Rural vote worth 21% more than an urban visible minority vote 2001: Rural vote increased in average worth to 34% more than an urban visible minority vote Vote dilution exists at a significant level Most worrying – decline in voting power of visible minorities from 1996-2001

Within Urban Areas „

1996-2001 – Non-visible minority urban votes remained under-represented, but at a constant level „ Urban vis min votes declined by 4% „ Though all urban voters are disadvantaged, it is an increasingly racialized gap „ Visible minorities are settling in the most populous ridings „

Provincial Vote Dilution (I) National figures only tell part of the story „ ON, BC & Alta disadvantaged by interprovincial rules governing allocation of seats „ Also highly urban and where most visible minorities settle Æ we broke vote dilution down for the same groups in each province „

Provincial Vote Dilution (II) „

B.C.: „ „

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Alberta: „ „

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1996 – Rural vote worth 35% more on average than an urban visible minority vote 2001 – 48% more 1996 – 4% more 2001 – 14% more

Ontario: „ „

1996 – 4% more 2001 – 17% more

Naturalization Scenario (I): The Warning Bell „ „

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Preceding measures were for voters What if all permanent residents eligible to vote naturalized? Large proportion of permanent residents are members of visible minority groups Same calculations, but for total population over 18, regardless of citizenship

Naturalization Scenario (II) „

2001 – Rural votes would be worth 49% more than urban visible minority votes under this scenario „ They were worth 34% more under the regular scenario „ Similar decline in the weight of vis min votes provincially in B.C., Alberta, and Ontario „

Reform Proposals „ „ „

Amend the EBRA – 10% variance not 25% Electoral Boundary Commissions Increasing the size of the House of Commons „ „ „ „ „

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Guarantee less-populous provinces the representation they currently have Increase the size of House to ensure representation by population based around different provincial floors “Quebec floor” of 324 seats – 92,000 per riding 12 more seats for Ontario, 4 for B.C. and 3 for Alberta Linked to Senate Reform? (Lortie Commission)

Outstanding Issues: Urban vs. Rural voter turnout? Vis Min vs. Non-Vis Min voter turnout?

A Charter Challenge? „ „ „

Charter issue – s. 15 violation? Adverse effects discrimination Different levels of analysis „

Intra-provincial allocation: subject to Charter Decisions of boundary commissions „ EBRA itself (because of variance) „

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Inter-provincial allocation: trickier Senate Floor: immune from Charter scrutiny „ Grandfather Clause: unclear „