24 August 2016

Wanna talk loopholes? #nlpoli

Regular readers shouldn't be surprised to discover the Liberals put a giant loophole in their independent appointments commission law that said, in essence, that they didn't have to use the commission if they didn't want to do so.

Danny Williams did exactly the same thing in 2004.

In fact,  the very first words in the fixed-election section of the House of Assembly Act say that nothing prevents the Lieutenant Governor from calling an election or proroguing the House of Assembly whenever he or she wants.  So election dates are fixed except when they are not fixed, which is all the time.

That's nothing, though, compared to the mess which is the section of the HOA Act that supposedly requires an election to be held a year after a premier resigns.

Here is the exact wording:
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.
Let's break it down and see what it says.

What triggers the whole thing?  Resignation of a Premier in the first three years of a mandate.

Sort of.

Resignation, yes,  but within three years of the date of the last general election.

The funky bit is what happens next.

The "person"  who follows that leader has to be elected by the party to replace him or her as the leader of the party and be "sworn in as the Premier of the province by the Lieutenant-Governor."

Lots of people,  at times including your humble e-scribbler, used to get the first bit wrong.  If you follow this section of the new legislation,  a political party must *elect* the replacement.  That means that neither Kathy Dunderdale nor Tom Marshall would have met that requirement.   They weren't elected.

Then there's a second bit.  They have to be sworn in.  You might even be able to make an argument that if the person is sworn in by His Honour, the Administrator,  you wouldn't trigger the second requirement of the legislation.

Flip those two triggers and "not later than 12 months afterward"  the new Premier must go to the Lieutenant Governor and advise him or her the House should be dissolved and an election held.

Notice the way the sentence is put together.  "Afterward" dates the 12 months from the new Premier hitting the two triggers.  And all the new Premier has to do is advise the LG on the date of the next election.

It does not say that election has to be held within the 30 days anticipated for a provincial election. Could be any time.

Just so that you know this is not an entirely theoretical exercise, just think about what happened when Kathy Dunderdale quit.  The Conservatives appointed a new leader and Premier.  Did not elect one. They appointed one.  Long gone were the days when a premier advised he would quit and then stay on while the party sorted out a replacement.  The Conservative stuffed someone in the job immediately.

The Tories announced a leadership process of some kind but set the date for the thing to wrap up something like six months into the future.  Once the cabal behind Coleman managed to get everyone else out of the race,  they talked about not having him take over as premier much before September or October.  The whole thing was a fairly transparent effort to delay hitting the triggers of  William's ego explosion, circa 2004.

The Coleman Fiasco wasn't the only time the whole mandatory election thing had an effect on local politics in a bad way.


Danny quits.  The Tory caucus agrees to a backroom deal that kept Kathy Dunderdale in place as Williams' permanent replacement.  The caucus wanted to avoid a leadership contest in the same year they - supposedly - had to go to an election in the fall.  Imagine the decision if the caucus knew they could have held a leadership contest and gone to the polls when they wanted to, as opposed to when they would be forced to go.

Under the constitution,  the Conservatives could have gone until the fall of 2012 before they had to call an election.  Imagine if they could have gone short, right after a leadership or  - in the event of problems - that they could have gone in the spring of 2012.  Different situation.  Different outcome.  For those who might think that scenario favours the Liberals, it actually doesn't.  It's more likely the Conservatives would have elected a better leader than Kathy Dunderdale.  That is, they would have found someone who wanted the job, as opposed to someone like Kathy who had already said she didn't.

The fixed election dates have caused other problems as well.  One of them is that they have helped to make it harder for candidates to run who don't have the money or the time to spend upwards of two or three years working a district to win a contested nomination.  Another is the advance voting provisions that allow people to vote for a party before an election even exists.

There's plenty of reason for the Liberals to overhaul the entire elections law including the bits of the House of Assembly Act that have distorted our electoral process.  The changes would be in the best interest of voters.  That would also be something for a committee of the legislature to examine through the fall, with recommendations coming back for public discussion in the spring.


Current Question Add-on

Some of you are probably curious about the impact of s. 3.1 of the HOA Act and what might happen should the Liberals turf Dwight in the fall.

Let's just walk through it for a bit of fun.  SOme of the details depend on what happens, but essentially the time line could look like this:
  • November 2016 - Liberals vote for leadership review
  • (Liberals could appoint interim premier until leadership process is done)
  • November 2017 - last possible date for Liberals to elect new leader, under party constitution.  (Ball could run again)
  • November 2018 - deadline for new premier to advise LG on new election date.
  • (If Liberal polling improves because of the new leader,  they could go to the polls immediately, as soon as the leadership is settled.  Incumbency has its advantages and a leadership contest could produce some really interesting and unforeseen positive results.  After all, the last Liberal leadership attracted a huge amount of positive attention for the party.)
  • Or the new premier could advise to have the next election as scheduled...
  • October 2019 - fixed election date under current law.  
If someone wanted to try and bring the courts into it, they could try but the whole thing likely wouldn't get out of court much before October 2019 anyway.

And if nothing else,  the Liberals could always change the fixed date, just as the Conservatives did under Paul Davis.

So really,  do we have any kind of real deadlines for setting election dates, folks?

It's all just one big loophole for fixed dates.