Guest Post by Ron Penney
For
part of my public service career I drafted legislation for a living. It sounds
boring I know, but it has proven very
useful as I learned how to draft a statute and also how to read one. Not
something we were taught in Law School.
In
my younger years I participated in elections as a campaign manager, all
successful I might add! So I learned the practical side of elections and
election law. I also participated in the famous judicial recount in 1971 when
it was discovered that the ballot box for Sally’s Cove contained no ballots, as
it turned out that in accordance with local tradition they had been burned!
The
1971 election had lots of interesting twists and turns and the 2021 one has
already had them even before the votes have been cast and results announced.
The
resurgence of the virus just before the election date is the proximate cause of
the election delay and the change of voting methods but the risk was always
there. Should it have been anticipated as a possible impediment to the holding
of an election and should have there been contingency plans. The answer has to be yes.
As
I have argued in several Uncle Gnarley guest blogs, the election should not have
been called when it was, but for different reasons. I felt that we needed to
have the interim report from Dame Moya Greene, because our fiscal situation
ought to have been the primary focus of the election and our choice should have
been based on our assessment of the policy responses to that document by the
political parties. Instead we have had an election based on the mirage that we
have pots of money.
If
we do live in a true democracy then we should have expected the Greene report
to be released to the public first thing on Monday, so that at least the
100,000 new voters will have an important piece of information on which to base
their decision. Now we hear on the very eve of the day when her interim report
was supposed to have been provided, that she needs up to six weeks more to
complete it.
So
we just have the announcement of the vaccination priorities and a
preregistration process for those over seventy, which includes me, just as
100,000 of us are about to vote by special ballot, and then the announcement of
the delay in the Greene Report. It’s hard not to be cynical about the timing
and content of both announcements.
We’re
rapidly becoming a banana republic.
The
Chief Electoral Officer was placed in a very difficult position by the decision
of the Premier to call the election in the middle of a pandemic. The vaccine is
coming, albeit at glacial speed, so we
should have waited to have the election at least until late spring or early
summer. I have every sympathy for the Chief Electoral Officer and he ought not
to have been placed in the situation he now finds himself in, but he ought to have been better prepared to
handle an entirely predictable set of circumstances, and he wasn’t.
The
issue facing us is whether the decisions he has made in carrying out the
election can be successfully defended in the courts, should it come to that,
and whether, perhaps more importantly, it will be accepted as legitimate by the
electorate.
One
of the key initial mistakes the Chief Electoral Officer made was not to consult
with the political parties prior to making his decisions on how the election
could be carried out. An effort was made by the NDP and PC’s to have such a
meeting, which was initially agreed to by him, but then he changed his mind
after the Liberals refused to meet. He ought to have initiated such a meeting
himself so that he could have consulted with them on how he proposed to run the
election when it was no longer possible to have in-person voting.
The
Elections Act is a comprehensive code as to how an election must be carried
out. The issue is whether the holding of the election entirely by special
ballot, or vote by mail, is permitted under the Act.
My
view is that it may be from a legal perspective, subject to doing what I
suggest below to allow for in-person voting, but probably not from a legitimacy
point of view, and both are equally important.
We
are facing a very difficult fiscal situation and our government needs to be accepted by us as having won the election fair and square so it can guide us
through the coming crisis. I recognize that it is possible that we will end up
with a minority government again which poses its own issues but might lead us
to the creation of a national government, which might not be a bad thing.
Voters
can cast their votes in a number of different ways under the Election Act,
either in person at an advance poll, or on the actual day of polling, or by
special ballot. In most elections the vast majority of voters vote in person on
Election Day, which would have been the case this year except for the
appearance of the variant.
Because
of this we went to Level 5 of our covid alert levels which had the effect of
prohibiting in person voting. Even before that, the increasing case loads in
the metropolitan area had the effect of causing poll workers to refuse to work
and a decision to cancel in person voting in this region.
Having
the election conducted in different ways and at different times would have been
problematic because under section 60 of the Act, in a general election the
election “shall be held on the same day in each district.” The effect of the
variant led to the suspension of in- person voting throughout the province so
that problem has been avoided.
There
is one fundamental principle at play in the conduct of an election and that is
the constitutionally protected right to vote.
“Every
citizen of Canada has the right to vote in an election of members of the House
of Commons or legislative assembly and to be qualified for membership
therein.” (Section 3 of the Canadian
Charter of Rights and Freedoms.)
(As
an aside I was a member of the Newfoundland and Labrador negotiating committee
on the Constitution and participated in the events leading up to the patriation
of the Constitution, which included the Charter.)
So
when we consider the present situation we need to always have in the back of
our minds the question: does the use of special ballots comport with that
right?
There
are a number of serious concerns about how the Chief Electoral Officer has
handled this unique and unprecedented situation and one of them is his failure
to explain where he gets his authority to move to an election using mail-in
votes only.
I
think I know where his authority comes from but it shouldn’t be up to us to
discover it for ourselves. The Elections Act is a long and complicated piece of
legislation with 342 sections and even with my background I had to search long
and hard to find the authority, but I did.
It
comes from section 10 of the Act, which allows the Chief Electoral Officer to
adapt the voting provisions of the Act in certain situations, one of which is
an “emergency”. As we all know a public
health emergency was declared by the Minister of Health and Community Services
on March 20, 2020 and that order has been extended for additional 14 day
periods ever since then.
He
has very broad powers under that section including extending “the time for
doing an act” or “otherwise adapt a provision of this Part to the execution of
its intent, to the extent that he or she considers necessary.”
You
can never be fully confident of how a particular judge will interpret a piece
of legislation but I think the decision of the Chief Electoral Office to
utilize special ballots was the right one, subject to the caveats which I will
outline below.
We
have to have a newly elected House of Assembly as the previous one has been
dissolved and is no more. Some have argued that the dissolution of the House of
Assembly by the Lieutenant Governor on the advice of the Premier could be
reversed but I doubt that is constitutional.
In
any event, the government continues to exist notwithstanding that the House of
Assembly is no more and the financial responsibilities that it has can continue
to be exercised through the issuance of what are called “special warrants”
under the Financial Administration Act for a period of up to four months. This
is important to remember when I suggest an additional step which the Chief
Electoral Officer should take so as to ensure the legality and legitimacy of
the election.
So
remember what his fundamental constitutional responsibility is – ensuring the
“right to vote”
Do
the steps he has taken meet that requirement? I don’t think so.
Our
Election Act provides for a variety of ways to vote. Voting in-person is the
primary method, the others are supplemental. While we remain in Level 5 of our
alert system that method is precluded but we won’t be at Level 5 forever. Cases
are going down and vaccines are coming, albeit at a glacial speed.
The
current deadline for the receipt of special ballots is those postmarked March
12 at the latest.
I
have one major concern about special ballots, which I have asked Elections NL
to respond to, but as usual with most of my emails to public officials, I
received no response.
My
question arises out of the use of telephone calls and emails to request special
ballots, and whether those applicants have been required to provide proof of
identification in order to get a ballot, which is an absolute requirement under
the special ballot provisions of the Act. That’s something which cannot be
waived.
The
Special Ballot guidance document for voters says “Proof of Identity must
accompany each application.” That is highlighted in the document to make it
absolutely clear how important it is.
Section
86 of the Act is explicit that an application for a special ballot must include
proof of identification “by reference to a class of documents determined by the
Chief Electoral Officer.”
You
can find the list on the Elections NL website, or what you need to do if you
don’t have one of those documents by providing your own affidavit or one from a
guarantor proving your identity.
And
applicants must make their own application. It can’t be made by someone else.
My
other concern is the failure of the Chief Electoral Officer to extend the time
for applying for a special ballot for those who could not get their call
answered at the end of the deadline. In the case of in-person voting anyone
physically in a polling both at the time the polls are supposed to close can still
vote. The same should be true of those who made their attempt to get a special
ballot as the time to apply came to an end. As I pointed out above he does have
the right to extend times and has exercised that right numerous times over the
past few weeks.
Remember,
the “right to vote” is protected by the Charter.
His
response is that voters had lots of time to make their application, and that is
true, but the “right to vote” is so important that procrastination must be
forgiven. He should have extended the time for the rest of the evening and even
into the morning, if necessary, so as to protect that right, not to admonish
the laggards among us. This doesn’t apply to me as I voted in the advance poll
and fortunately not the one which was identified as a possible exposure site.
Valid
concerns about the special ballot process have also been identified by the
Seniors Advocate, which were also dismissed by the Chief Electoral Officer
claiming, incorrectly it appears, that she hadn’t communicated them to him.
Even if she hadn’t why should that matter?
As
a result the Chief Electoral Officer has estimated that at most voter turnout
will be 51% based on votes already cast in the advance polls, by special ballots cast originally and by the
special ballots requested under the current process. Not all the special
ballots will be returned.
Contrary
to what the Premier has said, it isn’t “premature” to talk about voter turnout
as we know for sure what the maximum will be and it is serious problem.
We
usually have voter turnout above 60 %.
This
raises two questions: has the “right to vote” been compromised and will the
results be considered to be legitimate. In the last election there were just
over 350,000 voters so the minimum number of disenfranchised voters is 35,000.
There
is only one way that we can be assured the vote will meet legal, constitutional,
and legitimacy requirements and that is to add a vote in-person component to
the election when we go to Level 3, which will likely be soon. Outside of the Avalon,
the Alert level has been reduced to 4, with a forecasted further reduction to
level 3 two weeks later. And it is likely the Avalon will follow the same path,
albeit two weeks later. In fact, outside the Avalon, in-person voting could
probably take place now while meeting the public health guidelines given the
limited number of people who would take advantage of the opportunity and they
could be conducted safely using advance
polling techniques with a limited number of polling stations.
There
is no reason why this can’t be done. We still have a government, and there is a
mechanism to allow for continued public spending until there is a new House of
Assembly. The election has already been extended by a month and counting.
What’s the difference if it is extended another month or two so that everyone
who wants to excise their constitutionally protected right to vote can.
If
that doesn’t happen we will likely face legal challenges to the result and even
if that doesn’t happen, the results may not be accepted as legitimate and we
likely be back to the polls again very soon at a time when all our efforts need
to be focused on our dire fiscal situation.
What
will be the nature of those challenges?
First,
it is likely that given the low turnout there will be numerous recounts. Part
of that process will have to include the examination of special ballots and
whether applications requesting special ballots support the right to receive
one.
Second,
there can be challenges to the process as a whole, base either on systemic
breaches of the election or a Charter challenge mounted either by political
parties or aggrieved citizens.
Another
election very soon is likely at significant additional cost and at a time we we
need certainly about our democratic institutions.
