Preamble
This post is the fourth of a series considering three major issues under the Canadian Charter of Rights and Freedoms: the impact of how the Supreme Court of Canada (SCC) has defined rights; the relationship between rights; and the relationship between guarantees of rights and freedoms and section 1 of the Charter.
I focus the discussion of these issues through the lens of section 3, which guarantees the right to vote and to be eligible to sit in the legislature. Following the exploration of the SCC jurisprudence relating to each of the three issues in relation to section 3, I then consider how the Ontario Superior Court of Justice and the Ontario Court of Appeal applied that jurisprudence in Working Families Ontario v. Ontario (“Working Families I”) and Working Families Coalition (Canada) Inc. v. Ontario (“Working Families II”), both decisions of Morgan J. in the Superior Court, and Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (“Working Families (ONCA)”), respectively.
Part 1 of the series included the (I) Introduction, (II) a brief summary of the impugned spending provisions of the Election Finances Act (“EFA”) and (III) an overview of the Working Families decisions (see here).
Part 2 began consideration of section 3 of the Charter, specifically the scope of the SCC’s interpretation of section 3 with an Introduction and segment reviewing the jurisprudence (see here). Part 3 considered the relationship between rights, primarily the relationship between section 2(b) and section 3 of the Charter (here).
Part 5’s Conclusion will include consideration of how section 3 conforms to the treatment of other sections. In addition, Morgan J. and the Ontario Court of Appeal comment on the application of section 33 of the Charter and I complete the series with a rundown of those comments in Part 6.
In this post, Part 4, I discuss the impact of the meaning ascribed to section 3’s “right to vote” on the relationship between that section and section 1.
- C. Relationship Between Rights and Section 1
- 1. Supreme Court Jurisprudence
Factors relevant to the section 1 analysis should not find their way into the process of determining whether there has been a prima facie infringement of a Charter right, since they then become relevant to the onus of proof on the applicants. For example, if social or collective interests are part of the definition of the right, the applicant must show that these interests are not more important than the applicant’s individual interests, since this might defeat the applicant’s claim. In these cases, the review does not proceed to section 1 where the government has the onus to show the infringement is justified.
To be clear, this is different from explaining the subtext, purpose or values underlying a right. These might, indeed, be relevant to the section 1 analysis, but they not affect whether the applicant has established that their right has been infringed.
In addition to the decisions about section 3 discussed in this post, the Supreme Court of Canada has introduced variables into a right that might more appropriately be considered under section 1 in other cases. I discuss the example of Withler in “Supreme Court of Canada Equality Jurisprudence and ‘Everyday Life’”. The applicants were two widows who challenged under section 15(1) of the Charter provisions of federal pension plans that reduced the amount of supplementary pensions they received based on the age of their husbands when the latter died. Speaking for the Court, McLachlin C.J. and Abella J. considered the impugned provision in the context of the pension scheme more broadly, including the applicants’ needs and cost of extending the benefit. As I wrote, some of the factors they considered under section 15 might have been relevant to justifying the discrimination resulting from the provision, but they should have been included in the section 1 analysis.
Thus if section 3 is defined as including collective interests, the applicant is required to show at the first stage that their individual interests are not properly limited by the collective interests. But if the section 3 right were defined only by reference to the individual’s right to vote, once the applicant has shown their right has been limited by (for example) prohibitions on disseminating poll results, the onus would shift to the government to show other interests justify the limitation.
Nevertheless, the relationship between the Charter’s rights and freedoms and section 1 does not necessarily fit within clean boundaries. At times, the analysis of a right uneasily elides with the analysis of whether an infringement is justified under section 1.
Similarly, rather than defining a right in part by reference to other rights with which it might conflict, conflicts between rights might be addressed through the interplay of the analyses of the guarantee and of section 1. Keegstra, in which the hate speech prohibition in the Criminal Code contravened section 2(b), but was justified under section 1, provides an illustration. Hate speech is protected speech under section 2(b). However, it offends against the right to equality (or, put another way, the value of equality) and criminalizing it was justified under section 1. Chief Justice Dickson rejected considering equality under section 2(b):
Sections 15 and 27 of the Charter, which deal with equality and multiculturalism, and the international agreements signed by Canada on the prohibition of racist statements, should not be used to interpret the scope of s. 2(b). It is inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context so requires. The large and liberal interpretation given to freedom of expression indicates that the preferable course is to weigh the various contextual values and factors in s. 1 of the Charter. This section both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society.
One might say the same about section 3: given the significance of the vote to our democratic system, anything that diminishes the value of an individual’s vote ought to be assessed under section 1. Note, however, an important distinction: to apply section 15 within section 2(b) would be to diminish its scope because the starting point is an open-ended guarantee; in contrast, to consider other factors within section 3 is to broaden its meaning, since section 3 is narrowly worded.
In Saskatchewan Electoral Boundaries, McLachlin J. (as she then was) did seem to allow section 1 considerations to flow into the rights analysis. She imported words in section 1 into the first stage of the Charter analysis by stating, “in interpreting the individual rights conferred by the Charter the Court must be guided by the ideal of a ‘free and democratic society’ upon which the Charter is founded.”
In doing so, she quoteed Dickson C.J. in Oakes where he used the phrase in articulating the test under section 1. As Dickson C.J. said, “The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.”
That these words flow through both the rights provisions and section 1 is not surprising, since the rights and section 1 are both subsumed with the same general framework characterising the Charter. The problem is that sometimes this leads to confusion between guarantees and justification for limitation analysis. This has been the case with section 3.
In part, the resolution of this confusion lies in whether one gives these broad terms (“the underlying values ad principles of a free and democratic society”) more specific meaning.
In Thomson Newspapers, Gonthier J. (in dissent, but not on this point) held that when poll results are not released in sufficient time to allow voters to assess them adequately, this is not a question of justifying the limit, but whether it contributes to the effective representation in the first place (Thomson Newspapers, Gonthier J., para. 19). Three days permitted proper consideration and as a result, the provision did not contravene section 3.
Defining section 3 to include variables and conduct relating to “effective representation” thus shifts the onus from a section 1 justification to the analysis under section 3 where the applicant bears the burden.
An even clearer application of the relationship between section 3 and section 1 is found in Sauvé, which dealt with the denial of the vote to prisoners. The government conceded a limitation on section 3. Chief Justice McLachlin, writing for the majority, stated, “The right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms, lies at the heart of Canadian democracy. … [(I)t] can only be trammeled for good reason.” (Sauvé, McLachlin C.J., para. 1)
Furthermore, the Chief Justice stated section 3 “must be construed as it reads, and its ambit should not be limited by countervailing collective concerns” (Sauvé, McLachlin C.J., para. 11), which should be addressed under section 1. She seemed to contradict her statements in Saskatchewan Electoral Boundaries, where she interpreted section 3 with a subtext to address situations relevant to voting, but not actually voting, and therefore not only “construed as it reads”. Moreover, she wrote, it is not appropriate to apply a deference standard to “fundamental rights” (as opposed to “a decision involving competing social and political policies”) (Sauvé, McLachlin C.J., para. 13).
Chief Justice McLachlin held that the government had not satisfied its burden of showing the government could justify denying prisoners the vote under section 1.
In considering section 1, Gonthier J., writing for the dissent, fundamentally disagreed with the Chief Justice’s starting point, since he considered the case to raise philosophical and political questions. These issues might arise in the arguments at the rights stage, he conceded. Although they should not affect the outcome of this stage, they might be relevant in considering whether the limitation is justified. He therefore cautioned against conceding limitations of a right, even though this was obviously the case here, since
…[I]t may deprive the courts of the benefit of the fruitful argument which most often occurs at that initial phase of the analysis, in defining the scope of the right, particularly with regard to historical and philosophical context. The development of contextual factors examined with regard to the scope of the right is of great importance since they clearly “animate” the later stages of the test [under section 1]….(Sauvé, Gonthier J., para. 78)
Figueroa addressed the appropriate place of analysis squarely, since Iacobucci J., for himself and five other judges, and LeBel J., for himself and two other judges (including Gonthier J.), disagreed on the appropriate way to introduce factors that are relevant to justifying a contravention of a right (in Iacobucci J.’s view) or to assess whether there is a contravention of the right (in LeBel J.’s view).
This disagreement posed a conflict about where the balancing of individual (or group) rights and societal interests properly occurs. Justice LeBel would have expanded the analysis under section 3 even further than did McLachlin J. in Saskatchewan Electoral Boundaries. In practice, however, one might ask how different these approaches are, except that LeBel J. was more forthright about the heavy burden section 3 should bear.
Justice LeBel articulated a test for section 3 that mixes up individual and societal interests. Although he was writing in dissent, it is useful to see what this means when stated explicitly.
He disagreed with the question Iacobucci J. articulated as the test for an infringement of section 3 (“whether the impugned measure ‘interferes with the capacity of individual citizens to play a meaningful role in the electoral process’”) because it “understates the complexity of effective representation and meaningful participation. Such multifaceted concepts cannot be reduced to the purely individual aspects of political participation, but rather comprise a number of intertwined and often opposed principles”. (Figueroa, LeBel J., para. 96)
Justice LeBel thus defined section 3 differently, saying while it is concerned with individual representation, it “is also inherently concerned with the representation of communities, both the various communities that make up Canadian society and the broader community of all Canadians” (Figueroa, LeBel J., para. 101). He maintained that a balancing of different values must take place within section 3 before it can be decided whether there has been a contravention of section 3:
I agree that any balancing of collective interests against the rights protected by s. 3 should be confined to s. 1, but some form of balancing of competing values, or of proportional assessment, remains appropriate, at this stage of the inquiry into the nature of the protected rights, in defining what those rights are. This step in the analysis is prior to concluding that the individual rights enshrined in s. 3 have been violated. It is only after that question has been answered that the question of balancing collective interests against s. 3 rights arises. (Figueroa, LeBel J., para. 124)
He explained that this approach is consistent with the internal limitations in other sections of the Charter, including sections 7 and 8; however, this comparison ignores that these provisions are internally limited on their face, while section 3 is not. But all rights, he said, are defined by their purpose and this can include not only individual but communal concerns and this is the case with section 3, which in its extended meaning imports values such as “effective” and “meaningful”. (Figueroa, LeBel J., paras. 130-131) He said, “[s]ection 3 rights are individual rights, but their meaning is determined by their social and relational context” (Figueroa, LeBel J., para. 133).
Given this approach, if individual rights are negatively affected, as they are in Figueroa, it is necessary to consider “whether as a result the electoral system fails to meet the constitutional standard of providing effective representation and meaningful participation, bearing in mind the countervailing values, including social and collective values, that are comprised within those phrases.” He called this “a proportionality analysis”, although a different one from the one under section 1. Although there are other values promoted by the legislation (such as cohesion over fragmentation), they do not outweigh the disadvantages of the 50 candidate requirement.
The impact of this approach, in this case, at least, is that there is little to consider under section 1:
In my view, the justifications advanced by the government for the 50 candidate rule are relevant to the infringement stage of the analysis, and I have given them due consideration in that context. As a result, little remains to be said in defence of the legislation in connection with s. 1. I would not rule out the possibility that in another case a non-literal infringement of s. 3 could be justified by pressing and substantial collective concerns. In this case, however, my finding that the legislation infringes s. 3 essentially amounts to a conclusion that it is inconsistent with the values of Canadian democracy. It is hard to see how it could nevertheless be shown to be “justified in a free and democratic society”. (Figueroa, LeBel J., para. 178)
Justice Iacobucci rejected this approach, maintaining a clearer separation in the analyses under section 3 and section 1, saying
I cannot agree with LeBel J. that it is proper, at this stage of the analysis, to balance the right of each citizen to play a meaningful role in the electoral process against other democratic values, such as the aggregation of political preferences. Legislation that purports to encourage the aggregation of political preferences might advance certain collective interests, but it does not benefit all citizens, namely, those whose interests are not aggregated by the mainstream political parties. As a result, the proportionality analysis endorsed by LeBel J. [under section 3] clearly admits of the possibility that collective or group interests will be balanced against the right of each citizen to play a meaningful role in the electoral process at the infringement stage of the analysis. If the government is to interfere with the right of each citizen to play a meaningful role in the electoral process in order to advance other values, it must justify that infringement under s. 1. (Figueroa, Iacobucci J., para. 31)
The two different approaches to section 3 and thus its relationship to section 1 were squarely before the court in Harvey: that section 3 rights are unqualified and any infringement must be justified under section 1; and that section 3 contains inherent limitations that help form the definition of the right and thus need not be justified under section 1.
A reminder of McLachlin J.’s comment in Saskatchewan Electoral Boundaries on factors to be considered under section 3 is apropos here:
… effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests. The problems of representing vast, sparsely populated territories, for example, may dictate somewhat lower voter populations in these districts; to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their “ombudsman” role. This is only one of a number of factors which may necessitate deviation from the “one person – one vote” rule in the interests of effective representation.
In the final analysis, the values and principles animating a free and democratic society are arguably best served by a definition that places effective representation at the heart of the right to vote. The concerns which Dickson C.J. in Oakes associated with a free and democratic society — respect for the inherent dignity of the human person, commitment to social justice and equality, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals in society — are better met by an electoral system that focuses on effective representation than by one that focuses on mathematical parity. Respect for individual dignity and social equality mandate that citizen’s votes not be unduly debased or diluted. But the need to recognize cultural and group identity and to enhance the participation of individuals in the electoral process and society requires that other concerns also be accommodated.
In summary, I am satisfied that the precepts which govern the interpretation of Charter rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation. The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit of sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada. In the end, it is the broader concept of effective representation which best serves the interests of a free and democratic society. (Saskatchewan Electoral Boundaries, McLachlin J.)
Although relying on the evidence the government provided (about variances in voting populations, for example), McLachlin J. undertook the analysis determining whether the boundaries led to effective representation entirely under section 3 and concluded she did not need to move to section 1.
Justice La Forest wrote for himself and five other judges in Harvey. He explained that McLachlin J. in Saskatchewan Electoral Boundaries set out how Charter rights are to be determined:
…She identified the general principle, emerging from R. v. Big M Drug Mart Ltd. … as being that Charter rights should be interpreted in a broad and purposive manner having regard to the appropriate historical and social context. From this general principle she identified three particular considerations that were relevant to the interpretation of the right to vote: (1) that the Charter is part of the living tree that is the Canadian constitution and that as such, “the past plays a critical but non-exclusive role” … in determining the scope of Charter rights; (2) that practical considerations should be borne in mind when undertaking constitutional interpretation; and (3) that the Court must be guided by the ideal of a “free and democratic society” as enunciated by Dickson C.J. in R. v. Oakes …. (Harvey, La Forest J., para. 23; citations omitted)
Based on her conclusion that the right to vote should be defined as “effective representation”, La Forest J. continued, “McLachlin J. went on to find that the electoral boundaries in question did not violate s. 3 of the Charter since they could be justified on the grounds of effective representation and did not need to be justified under s. 1.” (Harvey, La Forest J., para. 24) In short, as I noted above, all the work was done as part of the section 3 analysis.
Justice La Forest then considered the opposite approach as it appeared in Sauvé, where “the voting disqualification for inmates found in the Canada Elections Act violated s. 3 and could only be justified under s. 1 of the Charter” (Harvey, La Forest J., para. 25). In contrast to Saskatchewan Electoral Boundaries, in Sauvé, the work considering other factors was done under section 1. In Sauvé, of course, the issue was the simple right to cast a ballot, not a circumstance (such as a poll or redistribution of seats) the effect of which could be said to undermine or enhance the right to effective representation.
Justice La Forest described the approaches the parties argued in Harvey that reflected the approaches in Saskatchewan Electoral Boundaries and in Sauvé.
On the one hand, the Attorney General in Harvey argued “that the use of the word ‘qualified’ indicates that inherent in the right to be a candidate are limitations that are necessary to ensure effective representation” and therefore there was no limitation on the right to be eligible to run for office and sit in the assembly. On the other hand, Harvey maintained that the legislative provisions were “prima facie unconstitutional as violating his rights under s. 3 of the Charter”. One reason is that “the right to be a candidate and to sit as a member of Parliament or a legislative assembly should be read in a broad manner”. More significantly,
… [T]o accept the respondents’ position would be to remove the balancing of interests from s. 1 and incorporate it in s. 3 of the Charter. In their oral submissions counsel for both the respondents [the Attorney General of New Brunswick and others] and the Attorney General of Canada argued that any given qualification or limitation should first be weighed against the interests represented by s. 3 to determine if there was a violation of that section. Such an approach runs counter to the recent practice of this Court.
In interpreting the right to vote under s. 3 this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter. As I have earlier noted, I do not believe the wording in the second part of s. 3 justifies taking a different approach to the right to stand for election and become a member of Parliament or a legislative assembly. This is in accord with this Court’s well established approach of reading Charter rights broadly and putting the burden of justifying limitations upon the state. (Harvey, La Forest J., paras. 27-30; citations omitted)
Despite some resistance to loading section 3 with considerations more relevant to section 1, the meaning given the right to vote in Saskatchewan Electoral Boundaries stands. It is, of course, less evidently the case when the issue involves only actual voting as in Sauvé or Frank. Rather, the ramifications of this definition clearly play out in cases involving restrictions on spending or on releasing survey results, as in Harper or Thomson Newspapers, for example.
Yet this is not the inevitable result of Saskatchewan Electoral Boundaries. It is possible to define the subtext of voting as ideally leading to well-informed voters or effective representation, depending on the context. The factors that negatively impact on voting viewed this way could be considered under section 1, once an applicant has sown the factors have a negative effect on their right. They would not have to show that those factors do not contribute to a diminution in the value of their vote. As an example, think about Saskatchewan Electoral Boundaries somewhat differently.
Assume the subtext is fairness in voting or parity of voting, generally speaking. The applicant shows the changes in the electoral boundaries leave urban voters with bigger constituencies and thus a watered-down vote. The analysis then shifts to section 1, where the government bears the burden of showing that even if that is so, other factors outweigh it in achieving the objective of effective representation.
One of the difficulties arising out of the treatment of section 3 has been an unnecessary confusion around “competing values” and “collective interests” or “collective concerns”, a distinction LeBel J. makes in Figueroa. His reference to values occurs under section 3 and to interests or concerns under section 1. Justice McLachlin in Saskatchewan Electoral Boundaries refers to both “community interests” and “values” as relevant to section 3’s concept of “effective representation”.
- 2. Decisions in Working Families
The majority of the Court of Appeal in Working Families added to the confusion the Supreme Court has created in the treatment of the relationship between section 3 and section 1 of the Charter by the use of two phrases: “carefully tailored” (employed by Bastarache J. in Harper) and “overly restrictive”.
They said, “The requirement that the restriction be carefully tailored invites the court to examine the rationale, express or implicit, for the amount and duration of the spending limit – the express or implicit reasons why the lines were drawn where they were.” They explained, “Carefully tailored” under section 3 is not to be confused with “minimally impaired” under section 1; the onus is on the applicant to show that the provisions are not carefully tailored under section 3: “The appellants bore the burden of demonstrating that the challenged spending restrictions were not carefully tailored to ensure third party advertisers are able to convey their information to voters.” (Working Families (ONCA), majority, paras. 87 and 103).
The majority went on to import section 1 considerations from Working Families I into their review of Working Families II. They observed, “Although these findings were made in connection with their implications for a s. 1 analysis in Working Families 1, where a violation of the Charter right to free expression was conceded, the underlying factual findings are important in the careful tailoring analysis required here [under section 3].” (This reflects the importance Gonthier J. in Sauvé placed on the court’s considering whether there has been a violation of a guarantee rather than proceeding on the basis of the government’s concession that there has been.)
In particular, in Working Families I, Morgan J. held that “the 6-month restriction was voting right-enhancing. It ‘[accomplished] the desired objective’ and ‘[did] the trick’.” (Working Families (ONCA), majority, para. 109)
Nevertheless, the majority in the Court of Appeal emphasized, it is crucial not to conflate the analysis under a right, here section 3, with the analysis under section 1. In his Working Families II, they said, Morgan J. did conflate the two by referring to the time limits as a “reasonable alternative” under his section 3 analysis, whereas this is a section 1 consideration under the minimally impairing stage. (Working Families (ONCA), majority, paras. 118-120)
In dissent Bonatto J. cited Figueroa to warn against conflating the analysis under section 3 and that under section 1 (Working Families, ONCA, dissent, para. 167). However, she maintained that the majority did exactly what they criticized Morgan J. for doing: conflating the section 3 and section 1 analyses.
As she noted, “[t]he Supreme Court has repeatedly emphasized the difference between s. 2(b) and s. 3 analyses. And, as discussed, the s. 3 analysis is not to be conflated with a s. 1 analysis.” (Working Families (ONCA), dissent, para. 184). Justice Bonatto made the following crucial point:
Just because it happened to be the same judge who decided the s. 2(b) and the s. 3 applications does not mean that he was somehow bound by findings he made in determining that the s. 2(b) breach was not justified under s. 1 in determining whether there was a s. 3 breach. The application judge properly recognized that he was required to make findings in this case through a different legal lens than in Working Families 1. (Working Families (ONCA), dissent, para. 186)
The majority of the Court of Appeal did place the burden under section 3 on the Attorney General to show that restrictions extending beyond the six month could allow for a modest information campaign:
The burden of showing a constitutional violation is on the appellants. But here, the question of whether the challenged spending restrictions permit a modest informational campaign had to be addressed from the standpoint of the restrictions extending beyond the 6-month period previously found to achieve the desired goals. The modest informational campaign had to be one that could be mounted given the 12-month restricted period. The fact that the Attorney General points to no evidence that a modest informational campaign could be mounted within the challenged spending restrictions is telling on the ultimate question. (Working Families (ONCA), majority, para. 135)
The majority of the Court of Appeal held that the restriction violated section 3. Although the Attorney General did not make a justification argument, the Court of Appeal considered section 1, anyway. In their view, the 12 months period did not do more than the 6 months period to satisfy the egalitarian model, the extension to 12 months was not minimally impairing. And no benefits were identified as flowing from extending the duration of the spending limits while freezing their quantum“ (Working Families (ONCA), majority, paras. 140 and 141).
Since Morgan J. had already issued the decision in Working Families I under section 2(b) where he had held the provisions were unconstitutional, he was at pains to explain, as the SCC had stressed in Harper, “one must not equate the right to meaningful electoral participation with the exercise of freedom of expression” (Working Families II, para. 19). Freedom of expression and the right to vote are “distinct”.
He therefore contrasted findings under the two decisions. Under section 2(b), “any restriction on political advertisement spending amounts to a prima facie infringement of the right of expression” (citing Libman), while “under section 3 restrictions on spending for political advertisements can enhance citizens’ exercise of the right to vote” (citing Harper) (Working Families II, paras. 19 and 61).
At the outset, then, applying section 2(b) in Working Families I, Morgan J. almost immediately moved to section 1, where, since both the 12 and 6 months limits were effective in achieving the government’s objective, he found the 12 month limit failed the minimal impairment test (Working Families II, para. 48).
Under section 3, however,
[u]nlike under section 2(b), the analysis does not go right to section 1 where the government must meet a test of minimal intrusion. Under section 3, if the government intervenes in the political advertising market it must do so in a way that is attuned to right of voters to meaningful participation via an informed vote. Only if it were found not to be attuned to that objective would the section 1 analysis become relevant and the question of minimal impairment be raised. (Working Families II para. 110)
Under section 3, the government is given a wide berth: “The goal of the voting rights analysis in the first instance is not to restrain government or to make its legislative interventions as minimal as possible. Rather, it is to allow government to do what it takes to foster the kind of ‘equality in the political discourse [that] is necessary for meaningful participation’” (Working Families II, para. 106, citing Harper). Accordingly, the applicants had to show that the restrictions have gone beyond what is required to meet the egalitarian electoral model.
Although the purpose of section 3 remains the same whether the issue is plain voting or whether it involves a government action or legislation that indirectly affects the goal of the vote (“effective representation”), the impact on the relationship between section 3 and section 1 is likely to be different. The straightforward voting cases have involved the denial of the right to vote; the government is required to justify the reason for the denial under section 1. But the more complicated cases shift the analysis. In those cases, the court considers under section 3 whether the impugned provision or action detracts or adds to the objective of effective representation. If the result is a diminution of effective representation, only then will it be necessary to resort to section 1.
In the next post in this series, I conclude the analysis concerning section 3 and its relationship to other rights (particularly section 2(b)) and section 1, placing it within a broader context of other rights.
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