Let’s handicap the federal election—in all its infinite possibilities

Aaron Wherry on what it actually means to “win” an election

Adrian Wyld/CP

Adrian Wyld/CP

Nine months from now, we’ll have a federal election. One of several registered political parties, led by one of several recognized party leaders, will win that election. Unless no one necessarily “wins” that election. Unless it’s a bit more complicated than that.

Nine months away from that election, we should probably consider what actually constitutes a win in our system.

If more than half of the 338 seats that will be contested this fall go to the candidates of one particular party or another, it will be fairly easy to declare a winner on the night of Oct. 19. But anything short of that is basically ambiguous.

Here is how it was neatly explained in Democratizing the Constitution, a 2011 book from Peter Aucoin, Mark Jarvis and Lori Turnbull.

… since voters in Canada do not directly elect the government, elections cannot be expected to always resolve the issue of who should form the government. Voters may elect no one party with a majority of MPs. In such a case, there is no outright “winner.” In the absence of a method for electing the government directly, and thus separately from the election of MPs to the House of Commons, the “will of the people” can only be understood in terms of to whom the House awards its confidence. Of course, the standing of each of the parties that represents the decisions of the people will play a significant role in how confidence is exercised, but any interpretation other than how the House awards its confidence demands speculative interpretation of electoral results. The House must decide.

This is one of those easily neglected facts, the recitation of which can make one sound like a humourless pedant, but which we entirely ignore at our own loss.

It would be most accurate to say we won’t have one election this fall, but 338 elections, each likely contested by a representative of one of the four major national parties (among others). The 338 winners of those elections are then sent off to Ottawa to organize themselves.

When the representatives of one party win more than half of the elections, that organizing is relatively straightforward. But where no one-party majority exists, the winner is whoever can form a government capable of winning the House’s confidence.

The Brits have a phrase, apparently a gift of the great Simon Hoggart, for the latter situation: they call it a “hung parliament.” For whatever reason we’ve not yet bothered to acknowledge that anything might be unresolved. Instead, we’ve taken to saying that a party has won a minority government. And this, as lamented by an astute observer recently, is likely not for the best.

When reporting on polls that show a very close race during a campaign (and even outside of one), the headline is likely to read “Poll shows election would result in Party X minority government!” No it doesn’t — the poll shows the election is likely to result in a hung parliament. Many journalists don’t seem to quite understand the process of government formation in Westminster systems, and there is often confusion between the concept of a proper coalition government and something more akin to an agreement between two (or more) parties, for example, a supply and confidence agreement.

In the lead-up to the 2010 U.K. general election, when again, like today, polls where showing that the likely outcome was going to be a hung parliament, U.K. academics and research institutes began a campaign to educate the media and the public about government formation and what to expect should a hung parliament occur …

As a result of that campaign, when the election did indeed result in a hung parliament, no one panicked. The media did not declare a minority Conservative government once the seat totals were in. The parties were allowed to negotiate and take the time to see what sort of arrangements could be worked out.

A simple aggregate of recent polls gives no federal party enough support to win a majority of our 338 seats. Indeed, if you imagine that 38 per cent of the popular vote is something like a magic number for winning a majority of seats—no one has ever formed a majority with less than 37.7 per cent of the national vote—the leading party (Conservative, Liberal or NDP) has been short of a majority for most of the last three years.

So let’s talk about what can happen before and after October’s election.

  • 1. THE RULES

1. The rules

Remember here that the current prime minister remains the prime minister until he or she resigns—either proactively or after formally losing a vote of confidence in the House. It’s never happened that a Canadian prime minister, faced with a disappointing election result and seemingly inevitable defeat in the House, has reconvened Parliament nonetheless, but it’s an option. And the incumbent government’s right to test the House is important to remember.

The U.K.’s Hansard Society has explained the sequence of events as follows.

Following the dissolution of Parliament for a general election the incumbent prime minister continues in office throughout the election period on a caretaker basis. If a hung Parliament results, then the incumbent prime minister is under no constitutional obligation to resign if his party does not win a majority. He can continue in office with the first call on the right to form an administration.

If the caretaker prime minister proves unable to form an administration (either he resigns, having failed to put together a deal with one or more of the other parties or, after having chosen to ‘meet’ Parliament, he loses a vote on the Queen’s Speech) then the leader of the largest opposition party will be invited to form a government.

When the governing party or a new party wins a majority of seats, matters are fairly straightforward, but where no party has a majority, matters can be complicated. The party with the most seats could attempt to govern with the formal or tacit agreement of other parties or the other parties could work together to form a government. An alternative government could also attempt to defeat and replace a duly sworn-in government.

That last scenario is itself complicated by timing, convention and the absence of precedents. Though a government could conceivably be replaced without a new election—as happened rather controversially in the King-Byng affair—it’s generally said that such a switch should come not too far removed from the previous election. But it’s never been established how long after an election is too long: how quickly an alternative government must move to replace the incumbent government or at what point a governor general can choose to call an election instead of asking another party leader whether he or she can form a government. In almost all cases, the governor general is expected to take the advice of the minister who has the confidence of the House, but the governor general also holds certain “reserve powers, which are exercised at his or her own discretion.” Here is scholar Peter Russell’s take on the extent of that discretion. And here is a take on the British experience. One of the so-called Lascelles Principles holds that the sovereign could refuse a request for dissolution if “the existing Parliament was still vital, viable, and capable of doing its job.”

There are various international precedents for coalition government—New Zealand, for instance—and at least a couple of Canadian examples worth considering. In 1985, the Ontario Liberals and New Democrats won the second-most and third-most seats in the legislature and then agreed on a governing accord and passed a motion of non-confidence against the Progressive Conservative government. The lieutenant governor then invited the Liberal leader, David Peterson, to form a government. Then, in 2008, the federal Liberals and New Democrats agreed on a coalition government, supported by the Bloc Québécois, and threatened to defeat and replace the Conservative government. Before anything like that could happen, Stephen Harper, whose government had not lost a confidence vote in the House, asked the governor general to prorogue Parliament. When Parliament resumed, the Liberals backed out of their coalition agreement with the NDP.

You might pull two interesting hypotheticals out of those examples. Bob Rae, who was leader of the NDP in Ontario in 1985, has said the Progressive Conservative premier did not ask the lieutenant governor for a new election before resigning, so, as Rae says, we’ll never know whether the LG would have granted that request. (Though you can argue that the LG would have had grounds to refuse.) In the case of 2008, we’ll never know whether the governor general would have given the coalition a chance to govern if it had remained intact and defeated the Conservatives in the House when Parliament resumed.

2. The possibilities

For the purposes of keeping this relatively simple, let’s assume the Conservatives, Liberals and New Democrats will, in some order, finish with the three highest seat counts after the October vote. To their totals might be added some combination of Green, Bloc Québécois and Forces et Democratie MPs and perhaps an Independent MP or two.

If the House of Commons’ 338 seats are divided along those lines, there are at least four general concepts to consider. And various scenarios to imagine from there.

  1. The Conservatives, Liberals or New Democrats could win a majority of seats.
  2. The Conservatives, Liberals or New Democrats could win the largest number of seats, but less than a majority, and attempt to govern on a case-by-case basis without establishing any kind of arrangement with another party or parties, essentially replicating what the Liberals did from 2004 to 2006 and the Conservatives did between 2006 and 2011. (Though in this case, mind you, anything less than a majority for the Conservatives might precipitate Stephen Harper’s resignation and a Conservative leadership race.)
  3. The Conservatives, Liberals or New Democrats could win the largest number of seats, but less than a majority, and then make a formal arrangement with another party or parties. An arrangement could be in the form of a coalition—with MPs from two or more parties sitting in cabinet together. Or it could be in the form of a governing accord—the governing party agreeing with another party or parties on some kind of legislative agenda (as the Liberals and New Democrats did in Ontario in 1985).
  4. Whichever party wins a plurality could be displaced by another party or parties. The second-place party might choose, for instance, to pursue a coalition or accord with the third-place party or some number of the other MPs. The second-place and third-place parties, joined together, could have a majority of seats or they could still depend on the support of other MPs to pass legislation. The second-place party could also conceivably get a chance to govern without having a formal arrangement with another party. (This last one is perhaps the hardest to pull off, but it’s at least interesting to wonder what would occur if the first-place party and second-place party were separated by a small number of seats.)

So, using this projected seat count, imagine the Conservatives win 139 seats this October, while the Liberals win 130 and the NDP wins 65. The Conservatives could try governing with that seat count. Or they could be overtaken by some arrangement between the Liberals and New Democrats—the Liberals and New Democrats having a majority of seats between them.

You can play with the imaginary seat count to create various fantasy parliaments.

Imagine the Conservatives win 140 seats, the Liberals 105 and the NDP 90. Maybe the Liberals and New Democrats, the most obviously likely twosome, form a coalition. Maybe they reach an accord. Maybe somehow the Greens get involved.

Maybe the Liberals win 130 seats, the Conservatives 120 and the NDP 80, but the Liberals opt to not pursue a coalition or accord with the NDP. Perhaps they don’t have to because the Conservatives, in the midst of a leadership change, are unwilling to defeat the government in the House and trigger an election.

Maybe the Conservatives win those 139 seats, but the Liberals and NDP decide to let the Conservatives continue governing, figuring that they’re better off waiting for a year and precipitating an election then.

Maybe the Conservatives, without a majority and casting about for a new leader, cut some kind of deal with the Liberals or New Democrats to remain as the government long enough to pick a new leader in exchange for certain legislation. (Does that seem wildly unlikely? Maybe. But it’s not entirely inconceivable.)

The ultimate point is this: it’s not who wins the most seats, it’s who can win the confidence of the House.

3. The British

In June 2010, Stephen Harper appeared alongside U,K, Prime Minister David Cameron and said of Cameron’s coalition that “the verdict of public opinion was pretty clear which was that losers don’t get to form coalitions. Winners are the ones who form governments.”

Mr. Harper’s views on coalition government have changed over the years and by couching this verdict in public opinion he might have been seeking to proclaim some kind of moral principle—I’m not familiar enough with public polling in the U.K. to know what polls he might be referring to—but there is no rule about who gets to form a coalition. And Harper’s position is also undermined somewhat by the fact that the second-place (Labour) and third-place (Liberal-Democrats) parties in Britain engaged in coalition negotiations after the U.K.’s 2010 election—Liberal-Democrat Leader Nick Clegg had said he’d give the first-place party a chance to cut a deal first and the third-place Liberal-Dems did eventually finalize a coalition agreement with the first-place Conservatives. (Labour and the Liberal-Democrats did not have enough seats together to form a majority in the House.)

Of course, we’ve already been over Ontario in 1985. But there is also the example of the United Kingdom in 1974. In an election in February of that year, the incumbent Conservatives won 297 seats, four fewer than Labour’s 301, neither winning enough to form a single-party majority. But Edward Heath, the incumbent prime minister, continued on and attempted to come to some agreement with the third-place Liberals. When those talks failed, Heath resigned and the Labour leader was invited to form a government.

(Someone might put their hand up here and point that in Ontario in 1985 and the United Kingdom in 1974, the second-place party had actually won the overall popular vote. That might be somehow vaguely relevant in a rhetorical or political sense, but it’s not really relevant for the system we have, I don’t think. The national vote is an interesting metric, but you can’t insist on its relevance without ignoring how our elections actually work.)

(In terms of a governing coalition that doesn’t involve the first-place party, there’s also Israel.)

Oddly enough, when we all vote in October, we’ll have had a chance to see how the Brits did in their own national election, scheduled for this spring. And beyond even resulting in another two-party coalition, that election might result in a larger coalition. Or no coalition at all.

YouGov’s latest poll for Britain isn’t far off our own situation, though at least until the Greens in Canada prove able to win more than a couple of seats, the U.K. Parliament’s seat arithmetic will likely be more complicated. Nonetheless, how the Brits sort themselves out could conceivably impact the discussion here.

4. The future

If Stephen Harper sticks to his current positions on coalitions, he has at least limited his options for remaining prime minister after this October. Thomas Mulcair has allowed that a coalition is a possibility. But Justin Trudeau has said he’s against a coalition with the NDP. Though that doesn’t categorically rule out some other kind of arrangement.

All of this should be a live discussion, in terms of what might happen and what voters might want and what might produce the most useful Parliament. Unless you wish to assert a moral standard to the effect—I don’t—it’s not necessary that a coalition be formally agreed to before a vote, but it’s fair to probe party leaders and MPs about what they’d consider. (If they say no to a coalition or accord now and change their position afterwards, you can get mad about that the same way you might get mad about any other policy reversal.) And any suggestion that one option or another is unholy should be tested against how our elections and our legislature actually work.

If you believe that Canadian politics will always tend toward the least exciting outcome, then maybe none of the more interesting hypotheticals above will ever come to pass. Still, you might consider this all an important civics lesson and general reminder of how things actually work.

Arguably, the simple idea of there being a single winner in every election is a bad one. Whatever the current political realities or commentary, we would probably be better off burying it or at least expanding it so as to not diminish the principles and value of the Parliament we have. At some point, an understanding of how things are actually designed to work could come in handy.

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