An Election in the time of Covid: Is a special ballot election legal and legitimate?

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.