LSUC’s Vexing Voting Scheme

Author: Alan Cliff Guest Blogger

As a recent call, I first approached this year’s LSUC bencher election with a kind of trepidation that I remember from student politics. But while the stakes have grown and the candidates improved, the voting system itself feels like a step in the wrong direction. Under this system, each voter may vote for up to 40 candidates from a pool of 95. While a few seats are filled based on the votes cast in each region, most benchers are chosen by voters across the province as a whole. This process burdens voters, hinders meaningful choices, and makes campaigning more expensive. It should be changed.

My first complaint is a selfish one. It’s effectively impossible for me, like most voters, to make 40 reasoned choices from a field of 95. The Bencher Election Voting Guide extends to 105 pages, while Law Times coverage fills many more browser tabs. To take even a quick look at each candidate’s materials (often including a website, email solicitation, and brochure) requires a time commitment that few lawyers can be expected to undertake. Two minutes per candidate, times 95 candidates, times 46,000 eligible voters, is over 145,000 hours. By way of comparison, this is more than a quarter of the total time that Ontario lawyers contributed to pro bono work in 2009. (Jamie Baxter and Albert Yoon, The Geography of Civil Legal Services in Ontario, November 2011, at p. 71).

With such a large field, voters (those who aren’t discouraged entirely!) necessarily turn to other, cruder metrics for making decisions. Name recognition. Endorsements. Association with big firms or government. While each of these might be a legitimate factor to consider, they shouldn’t be dispositive. Convocation has been criticized as being too cozy, and the current election system doesn’t help by encouraging voting shortcuts.

Requiring each candidate to aim her campaign at the whole province also makes the process more expensive. One candidate cites a total campaign cost of $58,871, a large part of which is per-voter costs such as postage. As some benchers have observed, “the cost of sending campaign materials by mail is prohibitive and has a disproportionate impact on candidates who cannot afford it” (Equity and Aboriginal Issues Committee, Report to Convocation, January 25, 2007, at p. 5). Allowing bencher candidates to target smaller constituencies could help reduce some costs.

I don’t doubt that the current system serves important purposes. It supports a province-wide conversation about the future of the Society and the legal professions. It helps candidates who have appeal across the province, giving a voice to categories of lawyers that are too dispersed to win local elections. There should be a serious discussion about how these purposes can be protected. One option might be to follow the English model and reserve some seats for non-geographic, identity-based constituencies (such as immigration lawyers or recent calls).

But whatever the original goals of the current system, it seems clear to me that it’s flawed. I hope that whichever candidates succeed on April 30th, Convocation turns its mind to improving the system for 2019.

— Alan Cliff is a lawyer in Ottawa.

Comments

  1. Well said, Alan.

  2. Addison Cameron-Huff

    And if you do take the time to read the guide while voting you may find (like I did) that the system times out and you lose all your selections.

    An improvement for 2019: linking names to profiles so voters can easily read about candidates while they make their many choices.

  3. Alan, how would you improve the system? Personally, I would give each member 40 votes to be allocated to candidates in units of 1 or more. So you could give 40 candidates 1 vote, or 1 candidate 40 votes. What do you think?

  4. Lee Akazaki, C.S.

    I’m glad the piece I wrote on the cost of all those ads and ad-mail drops has raised or added to awareness of the issue of election reform. I confess I don’t yet have any proposals for reform, except that one has to think hard about the rationale for the money behind the campaigns. Ultimately, that large campaign spending discourages candidacy is a pure economic fact.

    Proper reform, i.e. making the leadership of the bar more responsible to the public interest, has always met the inertia associated with low voter turn-outs. A low turn-out means an expensive ad campaign will have a more significant impact. It may seem counter-intuitive, but this is analogous to the way special interests have captured both red and blue seats in the U.S. Congress, by bombarding voters with ads that ultimately say very little but take up all the oxygen in the room.

    The LSUC governance reform of half a dozen years ago (from which there is are still bloodstains on the floor of Convocation) brought the Law Society more in line with its statutory role as a form of independent government. Governance reform needs to be institutionalized, not entertained as a Millennium project.

    LSUC governance reform coincided with term limits and governance reform at the OBA, and there’s the odd drop of my blood on the OBA carpet – but now we have a very representative leadership at the top of Ontario’s umbrella bar association. Come visit an OBA council meeting and you’ll see lawyers and students represented from very diverse backgrounds.

    It was also my motion at the OBA which urged the LSUC to bring in mandatory CPD (MCLE is what I called it in the motion). That reform was in line with the LSUC’s core mandate, but there were benchers who opposed it.

    When there was a movement to change the name to the Law Society of Ontario so that average members of the public could recognize it for what is is, the regulator of lawyers, I was one of 2 or 3 votes at the AGM in favour. A name may not seem to be important, but think of where we would be as a nation if we still called July 1 Dominion Day. My view of a flag is that has to be simple enough for kindergarten kids to draw it, and my view of a public institution like the Law Society is that a new immigrant with poor English should be able to look it up if they want to to file a complaint or concern about a lawyer.

    So call it two or three steps forward, the odd step backwards. The Law Society still needs to find its way out of the country club mentality in a way that allows the public to understand what it does, and that requires its membership to understand what it does.

  5. John: I don’t have strong views on what approach would work best.

    I’m drawn to the model used by the Law Society of England and Wales: 61 seats distributed among 42 geographical constituencies, plus 39 seats for special interest groups and areas of practice. However, the Law Society Act, s. 15(1) requires that benchers be elected from regions.

    Allowing voters to allocate more than one vote to the same candidate has advantages and disadvantages. In general, I think I would prefer a single transferable vote model with ranked ballots. However, both of these models would suffer from the problems of having too many choices, discussed above, unless smaller constituencies were used.

  6. I just bought my Max Millions ticket because clearly the stars have aligned – I actually agree with Lee Akazaki ! Well, except for the CPD stuff.

    LSUC is as far away from an example of good governance as one can be.

    40 Benchers is far too large a number to make any decision. So that number needs to be trimmed significantly – to 20, or less.

    Life Benchers are not consistent with good governance and they should be asked to resign.

    12 years is too long to be a Bencher – it still makes Convocation myoptic and stale. The term limit should be set at 8 years (essentially 2 terms) – this will allow greater refreshing of perspective and allow for more diversity.

    There also needs to be a cap on election spending.

    Finally there needs to be a shift in the perception of the role of a Bencher. It should not be seen as a career move, or as a stepping stone to becoming a judge. It’s not a place for seniors members of the bar to finally “step up”. The current amount of perceived prestige attached to the role is misplaced and harmful.

    It’s also clear from watching Convocation in action that many Benchers have no governance training or experience (see: the Rotman Directors Education Program) – perhaps that training should be required before being allowed to run for election.

    The far better option would be to scrap the elections all together, since the vast majority of lawyers in this province don’t vote and so don’t really care about the process.

    Benchers should be chosen, like all good boards of directors, based on a competencies score card and diversity. Only then will LSUC stay true to its role as a self-regulating body.

  7. The Act says:
    “15. (1) Forty persons who are licensed to practise law in Ontario as barristers and solicitors shall be elected as benchers in accordance with the by-laws.
    (2) The benchers elected under subsection (1) shall be elected for regions prescribed by the by-laws.”
    “Regions” is not defined by the Act, but by the by-laws. They could be the eight judicial regions, or a larger number of smaller regions.
    I agree with Alan Cliff that a single transferable vote model would be more responsive to voters’ wishes than the blunter cumulative vote model. Solicitors might rank solicitors first, while the criminal and family bar might rank their candidates first, women might rank women first, and lawyers outside the regional centre might rank local candidates first. The result would match the diversity of the profession in each region.
    In 2011 Central East elected only three benchers. Central East includes two districts in the GTA (who elected 2 of the 3) and five others outside it. Each part of Central East could elect a number of benchers matching the numbers of lawyers, but these smaller regions would not permit enough choice. So perhaps the eight regions should remain.