Higgs's rationale for no-snap-election deal is flawed, says political expert

The four main political parties were back for a second day of closed-door meetings Thursday that are purportedly about a high-stakes, black-and-white choice: whether an early provincial election will happen.

But the stark dilemma being presented this week may not be that stark — and may not even be that much of a dilemma.

"One thing that is very important to realize is that there's not two options here," Green MLA Kevin Arseneau said on his way in to the meeting. "It's not an election or a deal. That's like a false dilemma that's been invented."

And one expert says the premise underlying Premier Blaine Higgs's rationale for the talks is flawed.

Higgs says he wants all four parties in the legislature to agree to a no-snap-election promise by Friday or he'll be forced to call one, because this summer and its COVID-19 lull is the best window for a provincial campaign. 

Higgs argues that he could be removed from power as early as this fall without New Brunswickers having a chance to vote — a misleading claim, according to one of Canada's top authorities on the Westminster parliamentary system.

"It would be very odd for that to happen at this stage," says Philippe Lagassé, a professor at Carleton University.

After the September 2018 election gave no party a majority, Liberal Premier Brian Gallant stayed in power for six weeks, until he lost a confidence vote in early November. Higgs and the Progressive Conservatives were then sworn in without a new election.

Higgs has suggested that could happen again this fall.

Byelections must go ahead this fall in the ridings of Saint Croix and Shediac Bay-Dieppe, and a third will be required in Sussex-Fundy-St. Martin's, where the sitting MLA plans to retire.

If the Liberals won all three, they'd have 23 MLAs compared to 20 for the PCs.

"We know that that would be a change in government," Higgs said at his nominating convention last Saturday. "I don't think that would be any doubt that that would happen."

And he said that would happen without all provincial voters getting a say.

"Do we allow three byelections … [to] decide on the future of our government and the path we've been on as a province?" he said. "Or do we say we want all 49 ridings to be part of that decision?"

Voters must have say

In fact, given the traditions and conventions of the parliamentary system, it's almost inconceivable the Liberals would get to take power without voters getting a say province-wide.

If the PCs lost a confidence vote, Lt.-Gov. Brenda Murphy would almost certainly not swear in the Liberals without an election first. 

"It would be very much against how custom and convention typically operate in Canada, particularly if the premier wasn't in agreement with it," Lagassé said.

The lieutenant-governor has the latitude to refuse a new election within six to 12 months of the last one, Lagassé said, if another party in the legislature has a realistic shot of forming a government that can win confidence.

That's what happened in 2018 when Higgs took power.

Indeed, Gallant recognized that reality and didn't even ask the lieutenant-governor for a new election. He instead recommended that she ask Higgs to govern.

2 years since election

But if the Liberals were to defeat Higgs in the house this fall — not a sure thing, given they'd need at least one other party voting with them to do it — it will have been more than two years since an election.

That makes it hard to imagine a change in government without an election. 

An added reason why Vickers would not be able to form a government without an election is that his party, under Gallant, already had its shot to govern during the life of this legislature.

"That further cements the idea of how many governments you're going to have in a single legislature without going back to the electorate?" Lagassé said.

If Higgs lost a confidence vote, he would have the right to ask for an election and Murphy would be required by precedent to agree.

Higgs said Wednesday that if an election is going to happen, it's better to do it now, which is why he says he's pushing the parties to make a deal by Friday.

"I'm looking at a window here," he said. "We'd say if we're going to have an election, we're not going to keep talking about this for the next month, or two weeks, or three weeks." 

Vickers said Wednesday that the premier's deal-or-election ultimatum is a sign he's not "negotiating in good faith" and is really just looking for a pretext to go the polls.

"Should you call an election, that is your decision and your decision alone," Vickers said in a prepared text given to reporters.

The negotiations are scheduled to continue all day Thursday and into Friday.