COMMENT: Who Really Owns City Hall? Referendums, good and bad
In my last column we examined the referendum and its role in a democratic local government. When talking about referendum we cannot afford to ignore the importance of the rules that govern the referendum’s application. As with elections, the rules determine the efficacy of the referendum. Efficacy for the purpose of this presentation refers not to the count of the ballots but to the democratic quality of the exercise. There are good and bad examples of how referendums can be regulated.
Among the worst North American referendum examples, both in terms of rules and consequences, is the 1978 People’s Initiative to Limit Property Taxation in California, better known as Proposition 13. This vote had a seriously detrimental effect on California’s ability to meet the citizens’ demands and expectations for public services. Proposition 13 inflicted serious damage on the referendum’s reputation in North America. The objective was to lower taxes, and to legislate a formula by which to limit future tax increases. But Proposition 13 did more than that, and it is the additional measure that is largely responsible for California’s dismal public finances today. In addition to decreasing property taxes, the language contained in the initiative had the effect of requiring a two-thirds majority in both legislative houses for future increases of any state tax rates or amounts of revenue collected, including income tax rates. It is ironic that Proposition 13 would not have passed if a two-third majority had been required for it to be adopted. Less than 65 percent of votes cast in that referendum were in support of it.
In Proposition 13 we have two excellent example of how referendums may contribute to undermining basic democratic principles. It is a basic principle of democracy to respect the will of the majority without infringing on the rights and obligations of minorities. The objective of respecting the will of the majority is to prevent a minority interest group from imposing its will on the majority. Minority rule is the governing principle for autocracies, plutocracies and dictatorhsips of any kind. If a two-third majority had supported a constitutional amendment to require the approval of two-third majorities to future changes to the tax revenue rules, the measure would still have offended the majority rule principle, but at least it would have been applied to itself. The second principle offended by Proposition 13 was to subject two distinct measures, a tax rate formula and a change in voting procedure, to a single vote. To respect democracy’s principles the two issues should have been submitted to separate votes, one on the new taxation limits and another on the amending formula for votes on taxation.
British Columbia provides another example of inappropriate referendum rules. The 2001 general election rewarded the Liberal Party with 97.5 percent of the Legislature’s seats on the strength of 57.6 percent of the popular vote. In 2003 the government, with the support of the opposition, appointed a Citizens’ Assembly on Electoral Reform to make recommendations for changes to the single member plurality electoral system common to Canadian elections. The Assembly recommended the adoption of the single transferable vote, one of several proportional representation systems. The Assembly’s recommendations were put to a referendum in 2005. The rules called for a super majority of 60 percent overall plus a simple majority in 60 percent of the ridings to approve the new voting system.
The referendum was supported by 57.7 percent of the popular vote and by more than a simple majority in 97 percent of the ridings. As it fell short of the stipulated threshold, the referendum was declared defeated. The referendum was held in conjunction with the 2005 general election which awarded the Liberal Party 58.3 percent of the seats on the strenght of 45.8 percent of the popular vote. In terms of democratic theory, the result for the NDP was perfect: 41.8 percent of the legislative seats for 41.5 percent of the vote The significance of voting regulations is obvious when we compare the outcomes of the election with the referendum votes. The election was won on the strength of 45.8 percent, and the referendum was lost on the strength of 57.7 percent. In both votes a minority won at the expense of the majority.
These are two examples of how the outcome of referendums can be skewed when the process lacks democracy’s essential qualities. The process established in the Municipal Act would not allow referendums of the kind to be held in Yukon municipalities. The Act does not restrict referendums to simple yes/no choices. Switzerland, a country where the referendum has long been institutionalized at every level of government, occasionally uses a two-stage process presenting voters with a yes/no and an either/or choice. This process offers an alternative and thus minimizes the confrontational aspect of a simple yes/no choice.
The Swiss system is best explained using the McLean Lake park example which resulted in a legal challenge. Using the Swiss system the City of Whitehorse would have submitted the proposed OCP bylaw amendment to referendum as directed by the petition. Council, concerned about restricting the use of the land for park purposes, would have drafted an alternative OCP bylaw amendment providing for a smaller or different park, perhaps a park of lesser quality or dimension to allow some gravel extraction. The referendum ballot would have listed two principal and one supplementary questions. The principal questions would have been:
1. Are you in favour of OCP bylaw amendment A (the petitioners’ proposal) – yes or no?
2. Are you in favour of OCP bylaw amendment B (the City’s counter proposal) – yes or no?
Citizens with a clear preference for either amendment A or B could vote yes to their preferred option, and no to the other. Citizens wishing above all to see a park, if not of the kind proposed by the petitioner then at least the one proposed by council, could vote yes to both options. Citizens opposed to a park of any kind could vote no to both questions.
The ballot would also include the following supplementary question:
3. If both OCP bylaw amendments are approved by the majority, which amendment should be adopted – A or B?
If the majority had voted no to both principal questions, the OCP bylaw would not be amended and the vote on the supplementary question would be irrelevant. If the majority had supported only one proposal, A or B, the OCP bylaw would have been amended in accordance with the will of the majority and the vote on the supplementary question would again be irrelevant. If the majority had voted yes to both A and B, the vote on the supplementary question would have determined which option would prevail and the OCP bylaw would have been amended accordingly.
The supplementary question would have been of little importance to voters with a clear preference for either amendment option. Voters who liked amendment A and disliked amendment B (or vice-versa) would have indicated their preference in both the primary and the supplementary questions. The supplementary question would have been of minor importance to those who voted yes to both primary questions. One way or the other, they would get a park. The supplementary question would have allowed these voters to indicate their preference.
The supplementary question would have been of greatest importance and democratic value to the minority who did not want to create a park and voted no to A and B. It would have allowed that minority to moderate the will of the majority by indicating their preference for Plan A or B — the lesser of two undesirable options. But even as these voters rejected the idea of a park, any park, their preference on the supplementary question can not be taken for granted. The view of some park opponents may have been: “If the majority wants a park, then at least let’s keep it down to a reasonable size.” Others, equally opposed to a park of any kind, may have voted for option A, expressing the view that “I don’t want a park, but if the majority decides that there shall be a park, then we might as well have a decent one.” The minority would thus not have been simply overruled by the majority; the majority’s decision would have been tempered by considerations for the view of the minority.
This two-stage process may not be suited to every referendum topic. But when the topic concerns a matter in which council and proponents are of opposing views, it engages both parties – and citizens in the community – in discussions on the respective advantages or benefits of the two options on offer. The situation created can shift the focus of the referendum campaign to the positive aspects of the options presented as trashing the opponent’s option may not in itself garner support for the alternative on offer.
The Yukon’s Municipal Act does not prevent a council from adopting a two-stage referendum process. Reflecting on the McLean Lake example, this process would have produced a democratic result endorsed by the community which the court decision could not do, and it would have done so at a fraction of the cost incurred by pursuing the matter through the courts. In the next column we will examine the reasons why the Municipal Act exempts tax and budget bylaws, and whether or not that exemption is reasonable and democratic.
Andre Carrel is a retired City Administrator, journalist, author, and full-time grandpal.