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Who should govern after an election?
The zombie debate over who should run the country when no party wins a majority of seats is back. And this time, it's dangerous.
You awake to a snarl. And scratching. To someone — something — at your door. Now it’s pounding on the window. Trying to get in. And it…it…my god, it doesn’t seem friendly. It’s coming for you. It’s coming for not-your brain! It’s…the debate over who should govern after an election where no party wins the most seats.
Most recently, the debate has popped up because we’re in the early stages of pre-election goofiness season and by law we are required to re-hash this stuff. This time, it coincides with Cabinet shuffle speculation, so it’s all a big treat. Like when your parents took you to the DENTIST!
The Conservative Party of Canada (CPC) is polling ahead of the Liberal Party of Canada (LPC), but their regional support seems to be spread in such a way that even if they win the most votes, for the third time in a row, they might not win the most seats. A Canadian general election is 338 individual elections, so the aggregate popular vote doesn’t matter in and of itself. The outcomes of those 338 elections do.
There’s plenty of time between now and the next election (dear god, let this be true), so lots can happen, and anything can happen during an election. If the blue side maintains or grows their support, the CPC might win both the most votes and the most seats, but not a majority. If the Liberals fail to keep support of a majority of the House of Commons, that would leave us with a situation where the Conservatives would need an agreement to govern with the support of another party or parties (maybe, but not super likely), a coalition arrangement with another party or parties (no chance in hell), or the will to try run the country on an ad hoc basis, trading off for support on the big stuff like throne speeches and budgets and whatever else they deem to be a matter of confidence.
But that’s not the debate we’re having. The debate we’re having is whether the Conservatives should get the first chance to govern if they win more seats than the Liberals, but not a majority. Healthy democracies keep a variety of issues open to discussion, deliberation, and debate in the public sphere. We disagree about how we should live together. Things change. People change. Technology changes. So, law and policy, even constitutions, must change. Provided these debates don’t question or undermine basic human rights, or the dignity and humanity of people themselves, they can be productive and healthy. We can say the same thing of institutions. But this debate could go sideways fast.
In the months to come, plenty on the right will make the case that the party with the most seats ought to govern — or at least be given the first chance to try to command the confidence of the House of Commons. Writing in The Hub, Ginny Roth made the case for this on Monday. She claims it’s “common sense” that the party with the most seats ought to try to govern. “For them, the party with the most seats wins,” she writes. There is something intuitively compelling about this and Roth makes the case about as well as it can be made. There is space here to have a good-faith discussion about the system, how it works, how people think it works, how people think it should work, and how it might work instead.
I think Roth is wrong nonetheless. For one, you don’t get to pick and choose laws or conventions based on “common sense.” For another, it’s not a convention that the party with the most seats governs, as Roth argues. Philippe Lagassé points out it may be a custom that whichever party wins the most seats governs (which is significant itself), but it doesn’t rise to the higher threshold of being a convention because the practice lacks “an agreement that it’s a binding rule” and “a reason for the rule to be binding,” — though it does have “clear and consistent precedents.” One out of three isn’t enough.
The way the system works now is the first minister (prime minister Trudeau in the current federal case) has the right after an election to meet the House of Commons and test to see if he has the confidence of a majority of members to continue to govern because he remains the first minister and his party remains in government. If he fails, off he goes and on to the next party we go — the Conservatives, almost surely — to test confidence. If they fail, too, then we probably get another election and I walk into the sea.
The system works this way because governments live and die by consent of the House of Commons. And if the government of the day can maintain that confidence with fewer seats than the opposition, then they get to, which reflects the will of the House of Commons and which preserves the stability of government (until it can no longer be maintained). And if a government is supported by more than the party or parties included within it, then logically we can lump in the support of that party and the other parties as tacit or express support, which indeed de facto increases its seat and popular support. If you believe that parties reflect or represent the will of the people, then delegating those decisions to parties to support the government or not is a fair and defensible extension of that delegated authority. Plenty of legitimacy there.
But the whole discussion may end up being an exercise in pre-election posturing for post-election time that goes nowhere and means nothing.
As Lagassé writes, and this is very important, “Most of the time, a first minister whose party didn’t win the most seats will resign.” There’s a very high chance that if Trudeau fails to win more seats than Pierre Poilievre and the Conservatives, that is exactly what happens. He quits, the Liberals back the CPC, and Poilievre governs. Then the most likely outcome is the Liberals will either continue with Trudeau or search for a new leader and support the CPC government until they see their moment to regain government and try to force an election or wait for someone else to trigger one (including the Conservatives themselves) and then try their best.
A quick look at 2006-2011 will give you a sense of how some of that might go. Keep in mind, the Liberals supported the Conservatives plenty of times during those years, in no small part because they knew they couldn’t win an election, especially if they ended up being blamed for causing it.
The disconcerting thing about the current debate over who gets to govern is that there’s a very real chance it will set up, deliberately or otherwise, a “stolen election” narrative on the right. The combination of Trumpian politics arguments in the US over the “stealing” of the 2016 presidential election, inauthentic and lunatic-authentic right-wing social media accounts, and traditional right-wing media figures drawing on the argument expressly or implicitly sets us up for some nasty stuff.
Recent history in Canada has been witness to a disturbing trend of right wing extremism, hatred, and violence. The Yellow Vest movement in 2018; the 2022 convoy occupation of Ottawa; surging online harassment; and rising threats against the prime minister, governor general, and other politicians suggest we’re in a dangerous moment in which these “debates” over who gets to govern are potentially much more than “debates” — they are potentially dangerous to our institutions and, indeed, the people who are a part of them. As we proceed in the weeks and months to come, we ought to keep that in mind and tread carefully.