A version of this post appeared in The Globe and Mail on Monday, May 4, 2015.
As voters across the province prepared to cast their ballots, they had to wonder: would this spring election end a Conservative political dynasty of over forty years? Would there be a minority government? If so, who would lead it: the venerable Tories with their new party leader, or either of the two opposition parties vying for power? Could the NDP emerge with the balance of power, or, shock the country, and actually win?
These were the questions Ontarians asked themselves May 2, 1985 as they headed to the polls. Sound familiar?
Albertans are justifiably skeptical of polls given the confident predictions of experts in 2012 of a Wildrose victory that never came to pass. And yet, across Alberta there are signs (literal and figurative) suggesting that this provincial election may end Alberta’s status as the only Canadian province never to have experienced a minority government. One would be foolish to discount the capacity for electoral success of Alberta’s Progressive Conservative Party, but equally is it difficult to deny the plucky surge of the NDP, and the hardy resilience of the Wildrose Party. By all accounts this remains a three way race for the 87 seats in Alberta’s legislature.
These are heady times, then, for partisans of all stripes across Alberta’s political spectrum, not to mention the columnists, pundits, and twitterati who live for this stuff. But if the election does result in a minority government, it will also compel into the spotlight less familiar figures to the political stage, Alberta’s Lieutenant Governor, His Honour, Col (Ret’d), the Honourable Donald S. Ethell, and the murky often misunderstood constitutional conventions that will guide him.
As the Queen’s representative in Alberta, and possessing the executive authority granted by the constitution, it is the lieutenant governor tasked with the responsibility of selecting the premier after an election. As has often been said, and seems so often to require repeating, in our parliamentary system, we elect legislatures not governments. From that elected legislature, the lieutenant governor will ask an individual to form a government. Constitutional conventions guide and constrain the Lieutenant Governor’s choices. Constitutional conventions are those unwritten constitutional rules – like responsible government – developed over centuries of government practice which fill in the gaps and flesh out the skeleton of our constitution. Like the oxygen we can’t see around us, constitutional conventions sustain the life of our constitutional democracy.
But conventions, as the prorogation episodes in 2008 and 2009 made clear, can sometimes be unclear, obscure, or subject to disagreement among political actors and constitutional scholars.
What is uncontroversial is that, by convention, the incumbent premier will resign if a different political party wins a majority of the seats in the legislature. Alberta’s magic number to obtain a majority is 44 seats. If no one party wins a majority of seats (imagine, for example, a not totally implausible scenario of 28 seats for the PCs, NDP, and Wildrose and 3 for the Liberals), by constitutional convention, Premier Prentice has the option of meeting the newly elected legislature to try and secure its confidence. Indeed, by convention, he has the option do so even if the NDP or Wildrose win more seats, but something short of a majority.
The potential role for Lieutenant Governor Ethell arises if either Premier Prentice resigns immediately after losing his majority government, or if Premier Prentice is not able to maintain the confidence of the legislative assembly and then resigns. In either of those scenarios, the Lieutenant Governor must ascertain which party leader is capable of governing with the confidence of the legislature. That choice may not always be clear.
Which possibly brings Alberta back to Ontario in the spring of 1985. After winning a plurality of seats, but not a majority, Premier Frank Miller was defeated in a vote of non-confidence by the Liberals and NDP just over a month after the election. Simultaneously, the NDP and Liberals had agreed to an Accord, by which the NDP agreed not to bring down the Liberals in a confidence vote for two years. While political opponents and some scholars questioned its constitutionality, and its impact on existing constitutional conventions, the Accord paved the way for Lieutenant Governor Aird, after consideration and consultation, to call upon David Peterson and the Liberals to form government. Back to the Future hit theatres weeks later. Like Marty McFly, constitutional conventions exist in two time periods at once, drawing their content from the past in order to apply to new contexts of the future.
Alberta’s upcoming election results may well be unprecedented from the provincial point of view, but they will not be unknown in our longer and broader history of parliamentary traditions. It is precisely that history and those traditions which may well determine Alberta’s next premier.