Independence Referendums: Who should vote and who should be offered citizenship? - Who votes in a referendum? General comments and some facts concerning Québec, by Guy Laforest and Eric Montigny

 

Who votes in a referendum? General comments and some facts concerning Québec

by Guy Laforest and Eric Montigny (McGill University and Université de Laval)

 

In critical essays on constitutional referendums, Patrick Taillon and Stephen Tierney have argued that the crucial difficulty is to identify the People, the Demos.[1] In other words, the first question is to determine who is substantively concerned by the ballot question (who are the legitimate stakeholders, as argued by Rainer Bauböck in his own commentary in this forum). In light of its own experience with referendums, Québec is a good case study. The aim of this contribution is to comment on some of the larger issues debated by Ruvi Ziegler and others in this forum, and further to explain the rules that are currently in place in Québec on voter eligibility.

General comments

On matters of referendums, consistent normative logic does not always work. To give but one example from the current debate, Rainer Bauböck in his own contribution recalls that, beyond the issue of the franchise, unilateral secession can be rendered legitimate if the central government of a state has violated the fundamental rights of the inhabitants of the seceding province or abolished their previous rights to self-government. Sometimes, reality can be more complex. It is possible to imagine a situation whereby the central government has substantially reduced, rather than abolished, the rights to self-government of the inhabitants of the seceding jurisdiction. Context, here, would require further normative reflections. On the issue of the franchise at the heart of the current debate, our core argument is as follows: gaining consensus between central and sub-state government is more important than maintaining consistency between pre- and post- independence enfranchisement.

Ruvi Ziegler, examining the Scottish case, argues that those who will be offered Scottish citizenship after independence should also be entitled to vote in the referendum in which the matter will be decided. He argues on the side of normative clarity and consistency. Bernard Ryan replies by siding with the pragmatic political and constitutional arrangements at work in the United Kingdom, which apply to the upcoming Scottish referendum the rules allowing European Union and Commonwealth citizens to vote at devolved and local elections. In the end, we believe that consistency between past and present democratic rules should prevail in this case over consistency about matters as they stand and democratic citizenship rules for the future. Rainer Bauböck makes a similar point in his comment, arguing that the rules guiding normal sub-state elections in Scotland should also apply to an independence referendum. However, the foundations of his reasoning are different from ours.  Bauböck starts from the idea that the sub-state demos is substantially different from the demos of an independent state, before moving to the issue of consistency. We would rather argue that the most important dimension, on the issue of the franchise and on many others, has to do with the existence of an overall agreement between the British and Scottish governments, arrived at on 15 October, 2012. Concerning independence referendums, nothing is more important than reciprocal consent and respect between the existing state and secessionist authorities. At least in part for reasons of consistency, we believe that the provision allowing young people, 16 and 17 years of age, to vote in the upcoming Scottish referendum, is wrong. This is, however, the kind of inconsistency we can live with because it was one element in the contours of the compromise between British and Scottish authorities. We will reformulate our core argument after having looked at the case of Québec.

Referendums in Québec and the electoral system

Over time, Quebeckers have experienced different types of referendums (always non-binding, following the logic of Westminster-based parliamentary democracy); three were initiated by the Canadian federal parliament and four by their own legislature.[3] The two most famous ones dealt with sovereignty-association in 1980 and with sovereignty-partnership in 1995.

As citizens of the Canadian federal state residing in the province of Québec, Quebeckers are entitled to vote at both regional and national levels.[4] Jurisdiction over the electoral process is shared by both levels of government, under the umbrella of the judiciary, including the Supreme Court of Canada which sits as Canada’s final court of appeal.

Two main laws stemming from the National Assembly of Québec govern the electoral system in the province. Adopted in 1978, the Québec Referendum Act is still in force. It includes provisions regarding the obligations to form a Yes and a No ‘camp’, to establish a Referendum Council, and to regulate financing. For other matters, such as the eligibility to vote, the Referendum Act refers to the Québec Election Act.

Qualified electors

According to the Québec Election Act, mentioned above, in order to be able to vote in a referendum in Québec, one has to be a qualified elector. The act applies age (18 years) and Canadian citizenship requirements.

To be a qualified elector, one must also have been domiciled in Québec for six months. For most electors, this is easy to demonstrate. This provision could face interpretive difficulties for newcomers or for students born elsewhere in Canada. The domicile of a person is the domicile established under the Québec Civil Code.[4] It means that it has to be one’s main address and that this person has expressed in practice her or his intention to consider it as such. A debate on the status of residency, initiated by McGill University students, occurred in Court before the 2014 election. Most of the cases submitted to the Court were rejected. Moreover, one year after the referendum of 1995, students of Bishop University were found guilty of voting without being Québec residents. Robert Ghiz, currently Premier of Prince Edward Island, was studying at Bishop University at the time and admitted to voting in the 1995 referendum.
In that perspective, a person who is deprived of voting rights pursuant to Québec laws (Election Act, the Referendum Act, the Act respecting elections and referendums in municipalities or the Act respecting school elections) is not allowed to vote.

A permanent list of electors

Since 1995, Québec has chosen to put in place a permanent list of electors. This list consists of the information contained in the register of electors and the register of territories. According to the Election Act, this information shall include the name, domicile-based address, gender and date of birth of each elector.

The information relating to electors is updated on the basis of the information transmitted to the Chief Electoral Officer. This information could come directly from electors, from the school boards, the Public Curator, the Chief Electoral Officer of Canada and the Department of Citizenship and Immigration of Canada. In practice, it comes essentially from the Régie de l'assurance-maladie du Québec. This agency has to notify the Chief Electoral Officer of any change in the name, address, date of birth or gender of a person whose name is entered on the permanent list of electors, as well as the date of the person's death. The same applies for a person who has informed the Régie that he or she has acquired Canadian citizenship or who is about to reach 18 years of age, at least six months before the person's eighteenth birthday.

Alternative voting procedures and voting outside Québec

The Québec Electoral Act provides many different ways for electors to express their vote beyond the regular practice of voting in one’s residential neighborhood. First, electors can vote at the returning officer's main office or branch offices. Second, the practice of early voting is gaining in popularity.[5] Since 2014, it is possible to vote on the campus of a vocational training centre or a post-secondary educational institution. Finally, postal voting is permitted. The latter method is available to electors who are incarcerated but also to electors residing outside Québec. The latter case is crucial to our current discussion.

Voting by electors residing outside Québec was in force for both the 1992 and 1995 referendums. Electors that register to vote outside Québec were deemed to be domiciled at their Québec address. They had to demonstrate that they had left Québec temporarily after being domiciled in Québec for 12 months. They were able to vote outside Québec for two years after their date of departure.

This two-year limit did not apply to an elector, and her or his spouse, posted outside Québec working for the governments of Québec or Canada, or to an employee of an international organisation of which Québec or Canada is a member and to which it pays a contribution. An elector who wished to vote outside Québec had to file and sign a request including the following elements: name, sex and date of birth;   domiciled address in Québec or last domiciliary address in Québec;  date of departure from Québec; projected date of return to Québec; and  postal address outside Québec. In addition, the person had to complete a declaration stating that he or she intended to return to Québec.

As shown on table 1, no more than 3,000 electors registered to vote outside Québec in the 1992 referendum. In 1995, 15,000 electors registered. Their participation rate was close to 80% in both referendums.

Referendum of 1992 1995
Number of constituencies 124 125
Number of electors 3 086 14 818
Yes option 1 343 2 533
No  option 1 089 9 016
Number of valid votes 2 432 11 549
Number of rejected votes 32 168
Total of votes 2 464 11 717
Participation rate 79,8% 79,1%
 
 

 

 

 

 

 

 

 

 

 

Conclusion

Since 1980, Québec’s democracy has experienced three referendums on its constitutional future. The Referendum Act and Election Act are permissive regarding eligibility. If one is a Canadian citizen, one can vote even if one has been a resident for only six months. Postal voting is also available for electors residing temporarily outside Québec. Nevertheless, to be a qualified voter, one must demonstrate that one has the will to contribute to the future of Québec and to be a member of the political community. In summary, one has to be a Quebecker, and this notwithstanding a temporary residence outside Québec. For normal elections and for referendums, those are the rules of the game. 

However, the legal and normative rules of the game are not everything in matters of referendums. Issues of political culture, dimensions related to the existence of a form of mutual respect and trust, however thin and limited, between key players, are of fundamental importance. At the time of the two secession referendums in Québec, there was no such trust and respect between the governing authorities of Québec and of Canada.[6] This is the greatest difference between the current Scotland-UK case on the one hand, the past Québec-Canada case and the current stalemate in Catalunya-Spain on the other hand. The politics of referendums requires consistency and as much consent as possible in the circumstances.

 
 

[2] It is likely that EUDO Citizenship will study the Canadian case at greater length in the future.
[3] Note that many electors in Québec consider their province to be the “national” level.
[5] 19% of electors used the early voting option in the Québec election that was held on 7 April, 2014. 
[6] See Tierney, p.144 and p.297, for a discussion of the background of the Québec referendums and of the 1998 Belfast (‘Good Friday’) Agreement.