We’re having the debate about who gets to govern after election again. Yes, again.

Let’s break it down one more time.

1) A serving first minister isn’t asked to ‘form government’ after an election, regardless of the result. They are still the head of government. The election has no effect on this legal situation.

2) Why’s this the case? Because the first minister is appointed by the Crown. Legally speaking, the appointment of a first minister has nothing to do with the legislature or an election.

3) Regardless of how many seats a first minister’s party wins during an election, they are still legally in office and can therefore choose to meet the legislature first after an election.

4) The only way the first minister leaves office is if they resign or if they are dismissed by the Crown.

5) The Crown will not dismiss a first minister unless they refuse to resign after losing confidence and there is another viable government able to hold the confidence of the legislature. This basically never happens.

6) Why doesn’t this happen? Because a first minister who can’t hold the confidence of the legislature will almost always resign. In some cases, as in BC in 2017, the first minister may first choose to test confidence and request a dissolution if they lose it. But the Crown can refuse dissolution if an election has just been held and there’s another viable governing party. In that case, the first minister only has one option: to resign or face dismissal. That’s what happened in BC in 2017.

7) So, the Crown isn’t inviting a serving first minister to form government after an election if they win fewer seats than another party. The Crown isn’t involved here and there is no government formation happening. The first minister is simply choosing to stay on.

8) Most of the time, a first minister who’s party didn’t win the most seats will resign. It’s fair to call that a custom at the federal level. But it’s not a convention.

9) Why’s that? Because conventions require three things: A) an agreement that it’s a binding rule; B) a reason for the rule to be binding; C) clear and consistent precedents.

10) The custom that the party with the most seats gets to govern has C going for it, but not A and B.

11) That said, custom carries a lot of weight; precedent is influential on its own. And first ministers who’s party didn’t come first in terms of seats usually see it as more legitimate and practical to resign. That’s why we rarely, if ever, see first ministers who don’t win the most seats stay on.

12) So, to sum up, the first minister gets to test confidence regardless of the election results, because they remain legally in office until they resign or are dismissed. The Crown, meanwhile, will not dismiss a first minister unless they lose confidence and refuse to resign, despite there being an alternative government.