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Investigations, Irregularities, and Identification: The Fair Elections Act

On February 10, Bill C-23, dubbed The Fair Elections Act, passed through the House of Commons. While the Conservatives maintain that the bill will decrease electoral fraud and irregularities, critics argue that it is a partisan move to strip Elections Canada of its power and to discourage certain sectors of the population from voting.

As Elections Canada was not involved in the bill’s drafting process, the organization has not released an independent report predicting the ramifications of Bill C-23.  However, one universally touted aspect of Bill C-23 is the removal of the ban on communicating election results before the polls close. In a country with six different time zones and reasonable internet coverage, it is simply not practical to expect people not to communicate what they know, or to punish them when they do.

The communications provision, however, is about the only feature of the bill that is not the subject of widespread controversy. The Fair Elections Act will also strip Elections Canada of its investigative authority. The Chief Electoral Officer, who is appointed by the House of Commons, will no longer appoint the Commissioner of Canada Elections, who enforces the Elections Canada Act. Instead, the Director of Public Prosecutions, who is controlled by cabinet, will select the Commissioner. Conservatives have argued that Elections Canada has persecuted their party, with Minister for Democratic Reform Pierre Poilievre going so far as to say that “the referee should not be wearing a team jersey.” However, it does not follow that moving the Commissioner of Canada Elections from legislative control to cabinet control will somehow make the investigative body more impartial. According to Chief Electoral Officer of Elections Canada Marc Mayrand, it just ensures “that the referee will no longer be on the ice”.

The 2011 “robocall scandal” subjected the Conservative party to wide public criticism. The scandal came to light after hundreds of reports of phone calls attempting to direct non-Conservative voters away from their polling stations. Despite the number of complaints, an Elections Canada investigation brought charges against only one individual, a junior Conservative campaign worker. If a party wants to avoid elections investigations (and convictions, as in the 2006 “In-and-Out” scandal), it might be prudent to avoid breaking the rules before claiming an institutional bias.

Perhaps the most contested change proposed is to the identification requirements for voters. Elections Canada has raised concerns about compliance with regulations from their staff, especially when voters need to register at the voting booth or need to be vouched for by another registered voter. In the 2011 federal election, approximately 1% of votes were cast by voters who had been vouched for. According to the compliance review, about 25% of vouched ballots involved some sort of irregularity, leaving about 0.25% of all votes as irregular vouched votes. If a critical number of votes are irregular, then the election can be nullified (as seen Etobicoke-Lakeshore in 2011). For example, if a race was won by 20 votes, and 21 votes had irregularities, then the results could be overturned.

In his response to the compliance review, Mayrand did recommend tactical changes for the 2015 election. One suggestion was “introducing new initiatives to reduce the need for registration and vouching on election-day,” as these were the areas that saw the most compliance irregularities. Another proposal in the report was to increase the use of the voter information card as a valid piece of identification.

At face value, it may seem that Bill C-23’s initiative to ban vouching at elections is a reasonable response to the compliance report – after all, vouching is associated with higher irregularities. However, there is a fundamental difference between reducing the necessity of a procedure and banning the procedure outright, especially if that procedure serves a critical purpose. According to Mayrand and multiple members of the opposition, vouching is important for many groups such as young people, First Nations, and seniors, all of whom may not have the required identification. The Fair Elections Act also goes directly against the compliance review’s recommendation that voter information cards be more widely accepted as sufficient identification, as it disallows their use altogether.

The difficulties facing certain voters are especially noteworthy since the bill would also restrict the ability of Elections Canada to run campaigns that encourage voting. This means that the organization could no longer promote voting amongst populations with traditionally low voter turnout. Targeted populations of these awareness campaigns include young people and First Nations, both of whom may have more difficulty producing voter ID, and are generally less inclined to vote for the Conservatives.

Poilievre argues that the vote-encouraging restriction was put in place because Elections Canada has been ineffective in increasing voter turnout. Indeed, the 2011 federal election saw a mere 61% turnout, which is among the lowest turnout in recent years. However, it is unclear how stripping Elections Canada of the ability to encourage the public to vote will improve voter turnout in coming elections.

Overall, the Fair Elections Act contains a high number of large-scale changes for a bill that has been passed so quickly with such little debate. Elections are the defining characteristic of a democracy; while it is important that issues pertaining to vote irregularities are addressed, they cannot be addressed at the expense of any person’s opportunity to vote. The potential disenfranchisement of certain sectors of the population is at the very least a poorly-considered side effect of the legislation, and at worst a calculated move toward voter suppression. Moreover, the ability to conduct investigations on any party’s actions during elections should be kept as far from the reach of the government as possible. As Poilievre ironically stated, “Independence is governance 101.”


-Janna Bryson


Image: AttributionNoncommercial Some rights reserved by Toban B.


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