Aug 2013 Newsletter – Voting Reform as a Civil Rights Issue

We hope you’re all having a wonderful summer.  I started writing this newsletter in Ashland, Oregon, where we’ve been staying at a lovely B&B and having many interesting conversations with people from all across the US about politics and democracy in our two countries.
Voting Rights Challenges in the USA
One of the things that has most struck me is the level of despair and cynicism many Americans feel towards their voting system.  Currently, the big news in the US about voting is linked to the recent US Supreme Court decision striking down an important provision in the 1965 Voting Rights Act that was widely credited with dramatically increasing African-Americans’ access to voting by providing federal oversight of new voting laws in states with a history of disenfranchising minority voters.  Since 2006 alone, the US Department of Justice has struck down 31 attempts to change voting laws, almost all in the US south, but with the recent 5-4 decision, these states are now free to implement discriminatory laws aimed at suppressing minority voters without fear of being overruled at the federal level.
Indeed, North Carolina has very recently passed the first of the post-decision laws that will soon require voters to produce acceptable state-issued photo ID in order to vote.  While seemingly benign (who doesn’t have photo ID these days?), there is considerable evidence that this kind of law will have disproportionate effects on the poor, people of colour and women.  Among the reasons are that poorer people are much less likely to have a valid driver’s license and women are more likely to change their names through marriage or divorce, thereby rendering their previous ID invalid.  In fact, the prestigious Brennan Center at the New York University School of Law has reported that fully a third of US women of voting age do not currently have acceptable ID that would allow them to vote.  The Brennan Centre study also found that over 11% of Americans don’t have acceptable photo ID, 18% of seniors, 25% of African Americans, 18% of young people (18-24) and 15% of low-income people, and a North Carolina study shows a strong partisan bias (nearly 70:30 against registered Democratic Party supporters).
These kinds of voter ID laws are part of an overall voter suppression effort in the US that includes other administrative measures (typically executed by party-affiliated elections officials) such as purging the electoral rolls of voters of colour (done without notification, which leaves voters without recourse on voting day), redrawing electoral boundaries to eliminate office-holders of colour, and moving polling places to make it harder for targeted groups to vote.  While proponents claim that the purpose of the law is to prevent “rampant and undetected” voter fraud, a study by Arizona State University found that there have been only ten cases of in-person voter fraud in the USA since 2000 (for an entertaining account of voter suppression activities in the USA, we recommend “Billionaires and Ballot Bandits” by BBC investigative journalist Greg Palast).  The North Carolina law also contained measures eliminating pre-registration of high school students and voting day registration (which means that if an irregularity is found on voting day, the voter is out of luck as they will have no mechanism to correct the problem).
Fortunately, there has been some pushback.  Former Republican-appointed Supreme Court Justice John Paul Stevens has issued a harsh rebuke to the Court.  The American Civil Liberties Union (and possibly the NAACP) plan to launch lawsuits.  And the US Department of Justice has just filed suit against Texas [also see this article in The Atlantic], so we have some hope that some sanity may eventually prevail down south.
Voting Reform as a Civil Rights Issue Here in Canada
All of this news about the assault on voting rights in the US have got us here at Fair Voting BC increasingly thinking about dealing with voting reform as a civil rights issue.  We all believe deeply in democracy – that is, that legitimate power must flow from citizens to our representatives and that citizens should be treated equally in this process.
But perhaps we’ve been too timid.  We keep trying to persuade the public and the political powers that our democracy would be better if we had a fairer, more democratic voting system.  But women would never have received the vote if they had simply tried to persuade men that society would be better if men would allow them to vote.  Rather, the suffrage movement won enfranchisement for women precisely because they wouldn’t take ‘No’ for an answer.  Not that change came quickly – the Canadian Women’s Suffrage Association was formed in 1883 and it took 33 years, until 1916, for women to win the right to vote in provincial elections in Manitoba, Saskatchewan and Alberta (followed by BC in 1917 and Canada in 1918), and (embarrassingly) not until 1940 for women to finally be able to vote in Quebec.
So, is our demand for a new way of voting in any way similar to women’s suffrage?  We believe there are strong parallels.  With our current Single Member Plurality voting system, only half the voters are represented.  Women’s enfranchisement doubled representation from 25% to 50% – adopting proportional representation will double it again, taking us to close to 100%.
We also have a potent new legal weapon at our disposal.  When women won the vote, Canada was still governed by the British North America Act, but since 1982, as last year’s 30th anniversary of the Canadian Charter of Rights and Freedoms reminded us, we now have a charter that grants us fundamental democratic rights – specifically, Section 3, which asserts our right to vote.
We don’t have space here to go into a legal argument in any great detail, but it’s very encouraging to consider that the Supreme Court of Canada stated in 1991 that “the purpose of the right to vote enshrined in s. 3 of the Charter is … the right to ‘effective representation’.”
While the focus in the 1991 case was whether or not it was permissible to have ridings with wildly varying populations, the crucial point for voting reformers is that the highest court in the land both determined that the highest goal of our voting system is that of “effective representation” and recognized that our right to vote has been evolving to enhance the meaning of that phrase.  More specifically, Chief Justice Beverley McLachlin explicitly stated that “inequities in our voting system are [not] to be accepted merely because they have historical precedent. … Departures from the Canadian ideal of effective representation may exist. Where they do, they will be found to violate s. 3 of the Charter.”
The idea that our current voting system systematically violates the “Canadian ideal of effective representation” has not yet been tested in court, so we plan to explore (with the help of legal scholars and advisors) whether we could possibly successfully make this case.  Stay tuned as we learn more.
Election News From Around the World
In other news, the Irish Constitutional Convention (very similar in some ways to our own BC Citizens’ Assembly – made up of 66 randomly selected citizens, 33 parliamentarians and a chair) overwhelmingly reaffirmed their commitment to STV and recommended a new citizen initiative process.
A UK study on election spending [PDF] put out by the Electoral Reform Society showed that there were huge disparities in how much political parties spent in different ridings – varying by over 20 times from the least to the most contested ridings.  This is a graphic illustration of how irrelevant voting is in the many safe ridings in elections under our current Single Member Plurality voting system and why we need to change to a system where all votes (and voters!) are equally valued.
Finally, we strongly recommend that you read political scientist Adam Kingsmith’s eloquent defense of the proposition that we aren’t apathetic, just sick of the political status quo, and his call to action.
Sorry about the longer-than-usual long newsletter, but we’ve gotten well-rested over the summer and have lots to share with you.  We hope you find it interesting as you turn your thoughts to the beginning of the new working and school year.
Yours for a stronger democracy,
Antony Hodgson
President, Fair Voting BC