New Brunswick election deadlock: All your questions answered

Power Play: Austin 'hasn't asked for anything' New Brunswick Conservative Leader Higgs says 'nobody wants to go back to polls' and accused Brian Gallant of trying to cling to power.

FREDERICTON -- Standing in front of New Brunswick's historic Government House, a sandstone mansion on the banks of the St. John River, Brian Gallant laid out the next steps Monday for the fractured province.

The Liberal leader, the province's incumbent premier seeking a second term in office, announced he had met with Lt.-Gov. Jocelyne Roy-Vienneau and received permission to seek the confidence of the legislature.

That's despite earning fewer seats than the Progressive Conservatives. After all the votes were counted in Monday's election, the seat count sat at 22 for the Tories, 21 for the Liberals and three seats each for the Greens and the People's Alliance.

Gallant pledged that if he loses the confidence of the house, he would step aside and allow Tory Leader Blaine Higgs to lead -- or trigger another election.

Still, many questions remain about how New Brunswick's political future will unfold after voters turned their backs on the province's entrenched two-party system and put the balance of power in two smaller parties:

How is it that Gallant gets a chance to form government, even if he has fewer seats?

In a parliamentary system, the convention is that the existing premier has the first opportunity to form government.

"The incumbent premier can always test the legislature," explains Kelly Lamrock, a Fredericton constitutional lawyer and former Liberal cabinet minister and house leader.

"Theoretically, in 2010 after (then-premier) Shawn Graham lost all but 10 seats he still could have gone to the lieutenant-governor and said, 'I think I can pull this off,' and he would have had every right to march into the house and make Conservatives turf him."

How and when will his attempt be tested?

The most important principle is that the premier has the confidence of the legislature, says Gabriel Arsenault.

"The key test will be the throne speech," explains the Universite de Moncton political science professor.

"We'll have a throne speech and that will lead to a confidence vote and if the government wins the vote that means the government managed to form a coalition or gain the support of the legislative assembly."

Does Gallant's clear win of the popular vote matter?

The short answer is no.

"Perhaps it should from a democratic perspective, but in terms of the rules and conventions it doesn't matter," Arsenault says. "The only thing that matters is the number of seats."

Lamrock says while the popular vote doesn't matter in a legal sense, it could help the optics of Gallant refusing to back down.

The Liberals were six percentage points ahead of the Tories in the popular vote, largely due to staunch support from francophone voters in northern New Brunswick.

Lamrock suggests that Gallant is trying to signal to the public that rather than "pathetically clinging to power" more people voted to make him premier than any other leader.

The Liberals will want to protect their brand, he says, and winning the popular vote adds credibility to Gallant's hold on power.

Is there a precedent for this in New Brunswick?

New Brunswick hasn't elected a minority government for nearly a hundred years, and this is the first time the party with the most MLAs has so few seats, Arsenault points out.

But in 2006 the government of then-premier Bernard Lord found itself unexpectedly in a minority situation.

After the defection of MLA Michael "Tanker" Malley to sit as an independent, the Lord government shrewdly appointed him Speaker.

Malley would cast the deciding vote on the spring budget, breaking the tie between the 27 Progressive Conservative MLAs and 27 opposition members.

"Bernard Lord governed in a 27/27 house for a year with a Speaker in the chair ... because the Speaker by custom does not vote to take down a government," Lamrock says.

However, after another Tory MLA indicated he would be leaving caucus, Lord called an early fall election to avoid a minority government.

Would party alliances need to be explicit to convince the lieutenant-governor they can govern, or can Gallant indeed try to go vote by vote?

The lieutenant-governor will look for assurances that the premier will have the confidence of the house.

"If you've got a signed letter from somebody with three seats saying, 'I've agreed that for 18 months I will not bring down this government on a confidence vote,' that becomes a powerful inducement," Lamrock says.

Meanwhile, instead of a formal pact to work together for a set period of time, Arsenault says the premier could go "vote by vote."

However, he says that's unstable and could trigger another election -- something no one will likely want.

"The strategy is usually to find if not a coalition than a stable alliance like we see now in British Columbia," Arsenault says.

Lamrock says there is one other play on the board: The Liberals and the Tories could work together.

"I don't think those two are the types to go fishing together," he says.

"But in some ways the two of them having to each act with some humility might be exactly what people would prefer rather than letting either of the two more extreme parties hold this thing hostage."

Could a recount change the electoral outcome?

Under New Brunswick's election laws, a recount is triggered automatically if there are 25 votes or less separating the winning candidate.

But candidates can request a recount even if there is a bigger margin, Arsenault says.

"I wouldn't put high hopes in any changes in that respect," he says. "Our system is fairly efficient. It's possible mistakes are made but I would be surprised."

The Tories won Southwest Miramichi-Bay du Vin riding by 35 votes, and Shippagan-Lameque-Miscou by 99 votes.

Could New Brunswickers be heading back to the polls soon?

Lamrock says if Gallant loses confidence of the legislative assembly quickly, Higgs will likely have the opportunity to form government.

But he says if the Liberal leader manages to hold on to power for a year or longer, the loss of a confidence vote at that point would likely trigger an election.

The constitutional expert pointed to the King--Byng affair, in which the governor general refused a request by the prime minister to dissolve parliament and call a general election. The crisis prompted the role of governor general to evolve, adopting a tradition of non-interference.

"Parliamentary convention is that if a premier falls quickly then the lieutenant-governor should be guided by trying to avoid an election and trying to make the people's will work, such as calling in a second option," Lamrock says.

"But if it goes over a year, the custom would be if the premier comes out and says I'm about to lose a vote, I want an election, generally the lieutenant-governor is obligated to let him call it."

- By Brett Bundale in Halifax