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What happens after Election Day?

Stephen Harper has claimed he won’t use procedural tricks to stay in power after Election Day if the Conservatives fall short of any of the other parties by even one seat. Here’s the problem: arguing that “the party that wins the most seats in our system forms the government” is itself a procedural trick. Why? Because it’s not true.

Let’s be clear: Harper is misleading Canadians about how Parliament works and he’s likely doing it to cling to power in the event the Conservatives don’t win a majority of seats in October.

Maxwell Cameron, the Director of the Centre for the Study of Democratic Institutions, has just released an important paper on this called Trust and Confidence: Post-Election Cooperation in Parliament.

An incumbent government’s leader does get first crack at forming government. But a party leader must win the support of a majority of MPs – the “confidence of the House” – to form government. Any party can do that and, as Cameron points out, “Parties in Canada do not automatically win the right to govern, even if they secure the largest number of votes or seats.”

As soon as a party leader loses that confidence in the form of a majority vote in the House, it’s legitimate for other parties approach the Governor General with a governing agreement. This can take many forms ranging from ad hoc arrangements to accords to full-fledged coalitions.

It’s legitimate for the opposition parties to try to do so, even if the Conservatives do get the most seats. And after the last 9 years, most people agree it would be a desirable change.

Our movements need to be ready for the election campaign to continue in a new form after October 19 if the Conservatives do not win a majority. Harper is already laying the groundwork for what would likely be a very loud and misleading campaign to cling to power.

Remember prorogation?

The Conservatives’ misleading campaign in 2008 to demonize and discredit the opposition parties’ attempt to form a coalition could be foreshadowing of what’s to come. Let’s not fall for that trick again.

This time public opinion supports a coalition, but if Harper gets the most seats we can expect him to put up a pretty serious fight. Even if the Conservatives don’t get the most seats, it’s hard to imagine Harper packing it in without a fight.

Since incumbent prime ministers get to choose when parliament reconvenes Harper could conceivably push the first sitting of Parliament post-Election until Spring 2016 or later. At one point Joe Clark didn’t reconvene Parliament for five months after an election.

Maxwell points out that if and when opposition parties reach an agreement, they “must wait for the government to meet the House and be defeated before the Governor General may invite them to form government.” At that point, it becomes “the prerogative of the Governor General to invite the leader of the opposition party with the most seats to form a new government.”

An important reminder from Maxwell: “The prime minister may advise a dissolution of parliament and a new election, but the Governor General has the prerogative to reject that advice from a prime minister who has lost the confidence of the House, especially if there is a reasonable expectation that there is an alternative government that commands the confidence of the House, and not much time has passed since the election.”

Ultimately, whether the October 19 election results in a minority or majority – and regardless of which party forms government – the balance of power won’t be in Parliament. It will be in the streets.

Let’s get ready.