Higgs election call would ignore fixed-date law for the 2nd time

In 2018, as the Liberals went down to defeat in a confidence vote and the lieutenant-governor invited the Progressive Conservatives to form a government, leader Blaine Higgs was asked how long he wanted his mandate to last.

"Four years," he told reporters without hesitation. "We're going for the gold."

Instead, Higgs cut short his term with a snap election call less than two years later claiming he had no choice.

"My goal is to ensure we have stability," he explained in August 2020.

Now Higgs has opened the door to triggering another snap election.

He's already the first premier to ignore New Brunswick's fixed-date election law, which dates back to 2007. Now he may also become the first to do it twice.

To be clear, the fixed-date section of the law is not binding.

It schedules each election for the third Monday in October, four years after the last one currently Oct. 21, 2024.

Fixed date elections are more fair for everyone.- Duff Conacher, Democracy Watch founder

But the law also says that formula does not affect the discretion of the lieutenant-governor to dissolve the legislature early.

And the lieutenant-governor exercises that discretion at the request of the premier. She or he has little choice but to grant a dissolution when a premier asks for one.

Higgs is suggesting that he may be forced to ask for one just as he argued he was being forced into doing so in 2020.

Back then, he had a minority government and was in the early phase of managing the COVID-19 pandemic. He was also facing a legal requirement to call three by-elections.

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So he asked all three opposition parties to promise not to defeat his government on confidence and supply votes, such as the budget.

In return, the premier whose approval ratings were at record highs at the time would promise not to call an election until the scheduled date of 2022.

"We need some fundamental agreements in terms of the conduct, the fundamentals of how we would operate," he said of the fractured four-party legislature.

Now Higgs is pointing to what he says is a similar, though not identical, uncertainty: the possibility that six PC MLAs in his own caucus, who opposed his changes to LGTBQ policies in education, might vote against him again this fall.

"The question we face is will the focus be on delivering results for New Brunswickers, or will it be 12 months of political drama causing instability and stagnation in government?" he said this week.

Those six MLAs have pushed back.

One of them, Ross Wetmore, said last week he'd seen a list of bills the government plans to introduce this fall and "I don't foresee any problem with the legislation going through. Certainly I have no reason to slow down any of these bills."

Higgs was given similar assurances by opposition parties back in 2020 that they had no plans to defeat his government.

"One thing that is very important to realize is that there's not two options here," Green MLA Kevin Arseneau said in August 2020. "It's not an election or a deal. That's like a false dilemma that's been invented."

Then-Liberal leader Kevin Vickers told Higgs, "should you call an election, that is your decision and your decision alone."

Higgs eventually acknowledged that. He called the election and won, suffering no punishment for going two years early except a legal challenge by the watchdog group Democracy Watch.

"Fixed date elections are more fair for everyone: all the parties, people who want to run as candidates so they an prepare their lives to make it possible, and even for volunteers to volunteer," says founder Duff Conacher.

"It makes it better for voter turnout as well, generally."

Conacher has gone to court in Ottawa and in various provinces trying to force prime ministers and premiers to comply with fixed-date laws.

In almost every case, the courts have ruled that the laws are not binding because they can't override the discretion built into the parliamentary system.

The only exception was the New Brunswick Court of Appeal in its ruling on his challenge to Higgs's 2020 snap election.

The court said because New Brunswick's law explicitly referred to the premier's role in requesting dissolution, it might be binding on whoever held that position.

That ruling might have let Conacher block a future snap election.

But Higgs's government amended the law in June to remove the problematic reference.

"That was the move of a powermonger who wants to be able to call an election when it's good for him and his party. It's undemocratic and it's also unethical," Conacher said.

With no realistic legal path here, Conacher said he won't challenge an early election call by Higgs and will instead see how his pending case in British Columbia unfolds.

Instead,it will be up to voters to judge whether the premier has called one snap election too many and why the vote he said he needed in 2020 for "stability" didn't yield enough of it for him to "go for the gold" of a full four-year term.