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Inside Politics

Etobicoke Centre ruling has impact on future elections

The Supreme Court ruling Thursday on the 2011 election outcome in the Toronto riding of Etobicoke Centre means the experience of exercising your right to vote might change. 

And any voter or candidate who wants to challenge a future election result over irregularities in voting procedures, as the Canada Election Act allows, might think about hiring a private detective.

In May, defeated Liberal MP Borys Wrzesnewskyj convinced a lower court to reject 79 ballots in Etobicoke Centre because of record-keeping irregularities at the polling stations, enough to overcome the 26-vote margin by which Conservative MP Ted Opitz won. 

The Supreme Court effectively restored those ballots, finding no irregularities at all, despite improperly completed or missing paperwork for voters either not on the voters' list or lacking proper ID.

The ruling was a split 4-3 decision, with the minority judges, including the Chief Justice Beverley McLachlin, disagreeing with the majority on virtually every point. 

Jean-Pierre Kingsley, formerly the chief electoral officer of Elections Canada for 17 years, called it a far-reaching judgment. 

"What the Supreme Court has said is that the constitutional right to vote trumps procedural safeguards during the election day." 

And because the court accepted after-the-fact evidence about voters' qualifications, he thinks things will change on voting day.

"It will be possible to foresee the Canadian electorate would go to the polls and say, 'my name is this, this is my address, check in the registry... but I don't have my ID. I'm willing to attest to this, I'm willing to sign an oath, I'm willing to sign a document. Check me out after, put my ballot aside, check me out, satisfy yourself after the fact.' This is what the Supreme Court has said." 

Kingsley also said that it's probably now permissible for a voter to vote anywhere in the riding, rather than having to go to a designated polling station. 

The Supreme Court found that even though many voters in Etobicoke Centre registered to vote at a poll they did not live in, their votes should count, as long as they lived somewhere in the riding. 

"Just show up at a poll, maybe while you're on the way to the shopping centre, or whatever. How can anyone be turned away now?" Kingsley asks. 

He emphasized that administrative errors, no matter what their ilk, may now be tolerated, in order to protect the right to vote.

For example, in Etobicoke Centre, 10 voters who registered to vote did not sign their registration certificates. The voter's signature is a statutory declaration that the voter is over 18 and a Canadian citizen. It is also a piece of evidence that could be subjected to handwriting analysis in the event of an investigation into voter fraud. 

Yet the four judges allowed to 10 ballots to stand because they were signed by the registration officer working the poll. This was despite the fact that at the lower court, there was evidence that the registration officer could not be found in order to be questioned. 

One returning officer who spoke to CBC said after the Etobicoke Centre election was overturned by the lower court, he had planned to put the "fear of God" into the poll workers he would train for the next election.

"Up to this point, I could say that you better be absolutely sure to fill things in right, because look at this, they overturned a $2-million election. And now, the Supreme court says 'no.' So now, don't worry about being sloppy - go right ahead. That's the really scary part about it." 

The Supreme Court decision also means is that it will be difficult, if not close to impossible, for anyone to contest an election result on procedural errors, no matter how serious. 

"The bar is now very high," said Kingsley. 

He said the burden now on anyone challenging an election will be to prove a voter shouldn't have voted, by finding them and checking their addresses, likely with the help of skilled investigators such as private detectives.

Kingsley thinks the Canada Elections Act should be changed so that Elections Canada investigates a disputed election on behalf of a voter or candidate and then takes the case to court if it's viable.

At present, the adversarial system means the sitting MP has to finance a defence. "It's an incredible barrier especially if that person had been an independent candidate as opposed to being sustained by a political party -- or what if it were someone from one of the smaller parties?"

He suggests that if the case proceeds, and it is legitimate, then Elections Canada should also provide some form of reimbursement to the person who brought forward the case. Wrzesnewskyj spent close to half a million dollars on this case, and would still be out of pocket even if he had won.

Tags: elections canada

Election technology

Paper cuts

Paperless polling stations are unfashionable, but internet voting is on its way


BERTIE AHERN, Ireland’s former prime minister, once lamented that his countrymen still cast ballots with “stupid old pencils”. Now his enthusiasm for electronic voting looks premature. Ireland has just scrapped 7,500 devices, bought for €51m ($66m) in 2002-3, but never used amid worries about reliability. A recycling firm bought the lot for €70,000: about €9 each.

Electronic voting machines are popular in emerging economies. But they are falling out of fashion in the rich world, where internet voting is a growing trend. Nine European states have tested electronic machines, yet only Belgium uses them widely. America invested heavily in digital devices after faults in mechanical ones plagued its presidential election in 2000, but its ardour is cooling too. In 2006 38% of American voters used electronic machines; only a third will do so in November’s poll. Authorities now prefer optical scanners that tally paper ballots.

Yet electronic machines do help in poorer places, where paper elections are trickiest to organise. Of the 18 states that are using or testing electronic voting machines, according to the International Foundation for Electoral Systems (IFES), 12 are in South America or Asia. Brazil deployed them nationwide in 2000, in part to help illiterate citizens. India followed four years later. Its machines register no more than five votes per minute, to hinder ballot stuffers. Venezuela’s are the most advanced. To prevent fraud, citizens voting in the country’s presidential elections on October 7th identified themselves with a fingerprint. Their machines also produced paper receipts to enable audits. Jimmy Carter, the former American president and an election observer, called Venezuela’s electoral process “the best in the world”.

Amid patchy enthusiasm for machines, interest in internet voting is soaring. Australia and Canada are among the 11 countries that have used online voting in a real election, says Ben Goldsmith, an expert at IFES. In November 23 American states will allow voters overseas to receive or return their ballots via e-mail. Ballots cast online made up 24% of the votes in Estonia’s 2011 parliamentary election (up from 5.5% in 2007). Norway may allow internet voting in its general election next year.

To reduce the impact of technical failures or cyber-attacks, Estonia allows citizens several weeks to vote online. To discourage vote-buying or voter intimidation, electors may cast their ballot multiple times during the election period, though only the final vote counts. But those who wait until election day must vote on paper at a traditional polling station: this ensures that last-minute system crashes cannot disenfranchise voters.

Some hope internet voting could help to encourage more people to vote. Since the 1950s turnout in British elections, for example, has fallen by over 20%; in 2010, less than half of all 18-24-year-olds voted. But optimists have little evidence to cite. High turnouts during early tests in Switzerland fell back as curiosity in the new system dwindled; abstainers rarely mention the inconvenience of voting when asked why they stay away.

The internet may make postal votes work better. Almost a fifth of American ballots are now cast by mail, a threefold increase over 30 years. But postal voters are twice as likely to mark paper ballots incorrectly. They also depend on increasingly erratic snail-mail services. Countries keen to retain links with emigrants hope easy online voting will keep diasporas engaged: in June French expatriates used the internet to elect parliamentary representatives.

A tall order in Tallinn

But few countries will easily emulate Estonian success. Countries such as America and Britain that shun national ID cards find it hard to identify their citizens online. Estonia is renowned for cybersecurity. Elsewhere, worries about hackers abound. In 2010 computer scientists at the University of Michigan infiltrated a test poll in the District of Columbia, reprogramming the software to play a well-known ditty whenever a vote was cast. They also hacked into security cameras to watch election administrators grapple with their attack.

A deeper question is how online voting affects the choices citizens make. Remote voters have more time to make informed decisions than those herded through busy voting booths, says Michael Alvarez at the California Institute of Technology, especially if many races run simultaneously. Yet people who vote while lounging in their underwear may do so less solemnly. A small study in Finland found that voters who cast ballots from home tended to take extreme positions; going to polling stations made people less selfish. Technology can help citizens vote, but politicians must make them care. No app exists for that.

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