Since Kathy quit and Tom Marshall taking over on Friday morning, people are wondering when we will go to the polls.
There’s talk about a snap election.
There’s talk about the clock starts ticking on Friday so the election has to be done within the next 12 months.
To help guide you through it, here’s an overview of the issue.
The Constitutional Bits
In Canadian provinces, we have elections whenever the Lieutenant Governor dissolves the legislature and issues a proclamation for an election. The LG issues the proclamation in the advice of the first minister.
That’s the legal formality of it. The power rests with the Queen, represented at the provincial level by the Lieutenant Governor.
In practice, the Premier – the first minister – makes the decision. The Lieutenant Governor could theoretically refuse to dissolve the legislature but that hasn’t happened since the 19th century at the provincial level. Federally, the Governor general has refused to dissolve parliament only once, in 1926.
So theoretically, Tom Marshall could take the oath as Premier, nip into a side room with the Lieutenant Governor and come back with a proclamation that the House is dissolved and the election will happen 21 days later.
Tom will be the Premier. He has the power.
If that’s the soonest Premier Tom could call the election, the longest we could wait until another election - constitutionally – is October 2016. No legislature can last more than five years from the date of the last election.
The Statutory Bits
There’s a bit of a wrinkle in that these days. Since 2004, changes to the House of Assembly Act set general elections every four years in October. The first of those general elections took place in 2007.
It’s only a bit of a wrinkle for two reasons. First, there’s a clause right in front of the one setting the fixed election date that says no matter what else, the Lieutenant Governor can dissolve the House and have an election whenever he sees fit.
Second, we know that the provincial government will have to change the fixed election date in 2015 so that it won’t conflict with a federal election happening around the same time. They could move it sooner or they could move it later. We don’t know yet what the date will be.
The smart bunnies out there have already noticed a problem. If we can have an election at any time (section 3 (1)), then we could wind up having an election and then having another right after it because of the fixed election date in section 3 (2).
You are absolutely right and that’s just another one of the enormous problems that came out of the changes made to the Act in 2004. Basically, the Conservatives didn’t think them through. The result is that you wind up with all these contradictions, overlaps, and - in some instances – blatantly undemocratic situations.
Not thinking things through with bad consequences. That’s been a recurring theme since 2003 and as far as elections go, the circus didn’t end with the fixed election date.
You have to add the confusion caused by clause 3.1 of the House of Assembly Act. It says that if the Premier quits before the fourth year of the fixed election period, then there has to be an election within 12 months.
It’s probably the funniest change the Conservatives made in 2004 because it was born entirely out of Danny Williams’ spite at having to sit as opposition leader for two years when he thought he deserved to be Premier in 2001. There was nothing more to it than that and anyone who tells you something different is just full of crap. it was a retroactive Frig Roger clause and in reality it will only serve to frig up the people who passed it without thinking. Payback really is a bitch.
Anyway, since this part of the law seems to apply to the current situation, let’s take a closer look at it. Specifically, clause 3.1 says:
Where the leader of the political party that forms the government resigns his or her position as leader and as Premier of the province before the end of the third year following the most recent general election, the person who is elected by the party to replace him or her as the leader of the party and who is sworn in as the Premier of the province by the Lieutenant-Governor shall, not later than 12 months afterward, provide advice to the Lieutenant-Governor that the House of Assembly be dissolved and a general election be held. (italics added)
The key part is the bit in italics. It’s very specific. The 12 month clock starts when two things occur:
- the person has to be “elected by the party”, and
- the person must then be sworn in as Premier.
You’ll notice in her resignation speech that Kathy Dunderdale was careful to say that she had “proposed” Tom Marshall take the leader’s job and that the caucus had “concurred.” There’s no hint of an election or a vote. No election. No 12 month clock.
The same thing would apply if the Conservative Party calls for nominations and only one person fills out the forms. No election. No trigger. Same thing.
So the Conservatives could legally just carry on governing without a general election until whatever date they set when they change it from October 2015.
Let’s just suppose for example, that something like that happens. We might have a political racket. Someone might talk about taking it to court. Someone might even do it. So what? Let’s have the lawyers out there game that and see what the costs are and what a court might possibly do if they accepted the case and agreed that the Premier had violated that section of the Act by not calling an election.
That brings us rather neatly to the third element in all this, namely …
The Political Bits
There’s the Constitution. It’s the skeleton of our political beast. There are pieces of legislation. Maybe we could liken them to the muscles of the creature. And then there is the stuff that fills in all the spaces. Those are the political bits.
The supreme political bit in our creature is power. Politics is about winning power, holding onto power, and exercising power. That’s going to be the fundamental calculation the Conservatives will make among themselves. They will hold an election when they are ready and think they can win. They won’t go before. The only firm deadline they have is October 2016.
Flip to the other end of the date range. They aren’t going to go on Friday or, indeed, any time in the next three or four months. They need to get their leadership done before going to the House of Assembly.
Their leadership contest will give them lots of publicity and all that but on a pragmatic level, at least three cabinet ministers and their political staffers and all their supporters will be sucked out of Confederation Building and on the campaign trail. There is no way Tom Marshall is going to head into the House with a weakened party that is distracted by the leadership fight.
The Conservatives may go for a replay of the 1989 option. They will finish their leadership and have the new Premier call the House in May or even June, with his new cabinet behind him. They’ll have a quickie session to bring in a budget and finish off whatever legislation Tom and the rest of the crew have been able to do behind the scenes. Then they’ll shut the House and hit the summer circuit in a full pre-election mode.
In that scenario, the earliest they are likely to go to the polls is the fall. There are many reasons. They’ll be tired and their coffers will be drained. They’ll need time to rest up for another big fight. They’ll need to find a raft of candidates to replace the two thirds of the caucus likely to pack it in before the next election.
What’s more, while the Conservatives are likely to move upward in the polls during the leadership, they probably won’t shift up high enough to reach the election comfort zone. That would take a total flip-flop with the Liberals in the most recent publicly available polls. Never say never, but that isn’t likely to happen in the space of three or four months. The Tories took a couple of years to piss off the electorate to this point and they aren’t likely to rebound quickly, if at all. Remember, the Liberals under Roger Grimes dropped to second place and never recovered after a couple of years of relatively good times.
And if that doesn’t convince you of the problems with public opinion, look at 1989. The Tories under Tom Rideout went into the election with a 20 point lead over the Liberals. The convention bounce was great for them and they figured – based on conventional wisdom - that they might slip five or 10 points. That would still give them a comfortable majority of seats. Unfortunately for them, the 20 point lead evaporated more quickly than it rose.
Let’s not forget that the Conservatives these days have to deal with the provincial government’s huge financial problems. They aren’t likely to have enough cash to fund a massive spending program that would buy re-election easily no matter when they go to the polls. The longer they delay making some hard decisions about government spending the worse they problems get. If they delay going to the polls and those problems get worse, their chances of getting re-elected will drop off.
Going sooner – like in the fall – is better from that standpoint. The new cabinet can tackle the problems in their first budget, knowing they will have up to four years for things to get better.
If they win.
Unlike 2007 and 2011, the Conservatives will go into the next general election not having the result already locked up.
-srbp-