The Sixth Estate

If this case can be summarized, in a single observation, it would be that it cannot be good enough to accept that individuals who voted were qualified to do so by registration, in the absence of the registration certificates, in the absence of the poll books recording anyone who registered by vouching and in the absence of the names from the final list of electors. Our system requires more.

I will not be commenting on the political spin of this story. For that, you can check out any of the nation’s editorial pages. I already know what they will say. Some will complain that it’s unreasonable to expect perfection and the result should have stood in the absence of any evidence of actual fraud. Some will say the Conservatives actually stand to benefit — it bolsters their coming denunciation of Elections Canada as incompetent and partisan, in the event that Elections Canada investigators manage to tie Pierre Poutine to the Conservative Party, it will give them ironclad momentum if they win the resulting by-election, and it might even give them an opportunity to dump troublesome Chief Electoral Officer Marc Mayrand on grounds of importance.

Instead, I’m going to provide something more useful: I’m going to summarize the ruling and the case. Then, you can decide whether or not the logic actually makes sense. I already know some people will assume it does, and others that it doesn’t, without bothering to look at the evidence. But here’s the ruling, and you can decide whether you’re prepared to accept it or not.

Background

The judge hearing this case was Tom Lederer. Far from being an activist liberal judge, he is actually a Harper appointee. He earned his degree in the 1970s, was a Crown attorney for several years, and then worked with several law offices between 1981 and 2007, specializing in administrative, environmental, and municipal law. His ruling can be read here.

In the 2011 election, Ted Opitz won Etobicoke Centre by just 26 votes, with 271 ballots rejected. He defeated sitting Liberal MP Wrzesnewskyj. Wrzesnewskij appealed to the court to overturn the results on the grounds of numerous irregularities. His was the first riding on Sixth Estate’s list of dubious ridings from 2011 to end up in court, and the first to have its result overturned. More may follow.

In the lawsuit, Wrzesnewskyj did not argue that actual fraud occurred. It might have; he took no position on this. Instead, he simply argued that more than 26 votes which were counted should not have been cast, and, given that, that the outcome of the vote was in question. This was the point on which the judge was asked to rule.

Case Law

The ruling provides a very helpful, if somewhat dense, review of Canadian legislation and legal precedent on court appeals of an election. Lederer notes that the issue at hand is central to the survival of democracy as we know it:

At its core, this case concerns the confidence that Canadians must have in our electoral process. If that confidence is diminished, it follows that our interest in, and respect for, government will be similarly dimished. It surely follows that if people who are not qualified to vote were permitted to do so, or if there is a concern that people may have been permitted to vote more than once, confidence in our electoral process will fade. (p. 2)

The Conservative Party agrees with this logic. That was the stated reason for introducing new amendments to the Elections Act several years ago, requiring voters to provide acceptable ID before voting, flirting with the possibility that no one could vote with their faces veiled, etc., etc. Basically, Lederer is saying, we have a very formal and paperwork-intensive process in place for holding elections, and we follow it because it allows us to say at the end that the result — even if it is a narrow result — was the correct one:

Our electoral process has the necessary checks and that they can work even where the plurality is as small as 26 votes… There are places in the world that would wonder that resuch a result is possible.

Under the current case study, the judge begins from what’s called the “presumption of regularity” — the idea that in the absence of any evidence to the contrary, we must assume the election did not involve any irregularities. In essence, this is the electoral law equivalent of “innocent until proven guilty.”

Next, any allegations of irregularities must be shown to have potentially affected the outcome in a significant way. Going to your polling station but accidentally (or even deliberately) voting at the wrong booth, for instance, doesn’t necessarily count as a meaningful irregularity: if you were qualified to vote, and you voted, then voting at the wrong booth didn’t meet the legal process set out for voting, but it still didn’t affect the outcome of the vote. Presumably, you would have voted the same way if you’d voted at the correct booth. Moreover, if a trivial mistake by a voting officer — not signing and dating a form properly, for instance — couldn’t have changed who you voted for, then your vote can’t be thrown out just because a bureaucrat made a mistake. Instead, an irregularity only “counts” from a legal perspective if it can be said to have altered the outcome at the fault of the voter — for instance, if you voted twice, or voted in the wrong riding, or for any other reason voted while you were not actually allowed to do so at all.

Finally, in order to overturn an election result, you have to prove that there were more voting irregularities which “counted,” given what I said in the previous paragraph, than the total margin of victory. Under Canadian law, it is absolutely illegal to demand someone to confess who they voted for. So legally we cannot be certain what the questionable votes might mean. They might have all voted for the winner, or all for the loser, or they might be split in such a way that they didn’t really affect the outcome.

But the point is, we can’t know. As a result, the law defaults to the position which Lederer started with: that the first goal of the election system is to maintain people’s confidence in the system. If the number of votes which count as meaningfully irregular is greater than the number of votes by which someone won the election, then we can’t be sure beyond reasonable doubt that the winner really won. And, so that we can be sure, the law requires that we hold a do-over — a by-election.

The Case

At first, lawyers for Wrzeswenskyj argued that once several procedural irregularities had been established, the burden of proof actually shifted to the defendants, who must prove that the electoral process really was followed properly. The judge didn’t agree. He said that in order to have the vote overturned, some burden of proof still rested on Wrzesnewskyj.

Next, they identified a variety of objections, all stemming from an analysis of a sample of votes cast at ten polling stations. (In other words, the number of complaints is based on a review of several different polling locations, but not of all of the locations in the riding, in which case the number of irregularities would presumably be even higher.) The ruling divides all of the objections about votes raised by the Liberals into several categories, as follows. You can read through them all if you want, but if you want to get to the action, the first four points were all thrown out, and the real action begins at Point 5.

1. Irregularities that don’t matter at all (no votes affected) – “Many” new voter registration certificates were submitted without dates on them, and in at least one case, a voting officer got confused and put a number in the wrong column in her (or his) poll book. Wrzesnewskyj did not argue that these should count, and Lederer agreed that they didn’t matter. He doesn’t say how many registration certificates were filled out wrongly in this way; according to him, it doesn’t matter because the only date on which the certificates could logically have been filled out was May 2 anyways.

2. Irregularities that Liberals claim lowered confidence in the election, but really didn’t (ruling: no votes affected) — Lederer summarizes “a spectrum of irregularities” which the Liberals claimed created a general lack of confidence that the election had been handled properly. For instance, he ruled that voting officers’ repeated failure to check off how a person identified or sign on all the dotted lines of certain forms wouldn’t have affected whether people could vote or how they voted, and therefore didn’t count.

Lederer acknowledged that in making this decision, he might be eroding “overall confidence in the process,” but he still threw out the Liberals’ argument, saying that a general “demonstration” of technical errors by officials was not enough to throw out an electoral result. Instead, they must be able to “add up all the disconted votes to see if there are enough to overcome the plurality.”

3. Irregularities where Liberals claim total votes recorded weren’t equal to total votes counted (ruling: no votes affected) — The Liberals argued that at one polling station, 5 people were checked off the voters list as having voted, but also filled out registration certificates as though they were not registered. The Liberals argued that this meant they could have voted twice: once correctly according to the voters list, and then again based on a fraudulent registration form.

In response, the Conservatives argued that this was a procedural error: there were 5 other voters who were crossed off the list as having been given a ballot, but not checked off as having actually put the ballot in the box. They argued that this meant the voting officer must simply have put his checkmarks in the wrong place. The judge agreed, and threw out this objection.

The Liberals also argued that there were 3 votes missing from another polling station, where 3 voters were recorded as having been given ballots (the cross-off) but not as having cast them (the check-off). The Conservatives argued that there were two additional voters who they claimed voted but weren’t crossed off, leaving a discrepancy of just 1 vote. This seems like a bizarre argument, at least as it was put here, but the judge agreed with them anyways and threw out the objection altogether, saying 1 vote was not significant enough to matter.

4. Irregularities where Liberals claim people voted at the wrong polling location (ruling: no votes affected) – The Liberals identified at least 66 people who put their ballots in the wrong ballot box — either the wrong table at the right location, or simply the wrong location altogether.

The judge threw out most of this complaint. He ruled that your vote would not change simply because you voted in the wrong location, and therefore that if you were at least qualified to vote somewhere in the district, you shouldn’t be invalidated just because you showed up at the wrong location:

consistent with the purpose of enfranchising our citizens, these votes should stand. This irregularity does not change the result. Rather, the change would occur if these votes were disallowed… absence evidence of double voting, the fact that they voted in the wrong polling division did not affect the result of the election.

5. Irregularities where the Liberals argue that voters failed to register (52 votes affected) — The judge accepted that at least 49 people at 2 polling stations were allowed to vote after filling out new registration forms on which they didn’t give their residential address, and that the pages where oaths that people were qualified to vote should have been made and signed were actually blank:

33 people voted by registration certificate… Their addresses, which should have been included, are not… This number is not repeated on the page which summarizes the results of the election. That page is blank. No registration certificates have been produced for Poll 426. If registration certificates were completed, they cannot be located… If they were prepared, they were never delivered to the… Chief Electoral Officer.

The Conservatives responded, in effect, that people should be allowed to vote even if they didn’t file their residential address or prove they were allowed to vote, because in their opinion we can be confident that the voting officers followed due process even if they didn’t file their paperwork: “the poll clerk would not identify a person in the poll book as having been registered without being presented with the completed registration certificate.”

It’s on this point, it seems, that the Conservatives finally lost Lederer’s confidence. For one thing, he noted, in one case at least two different sets of handwriting can be found in the poll book, so not just the one voting officer wrote in it. Moreover, he noted, the governing party was asking him to rule in their favour in the complete absence of the required registration certificates, the blank pages in the polling book, and the fact that none of the people actually appear on the final list of electors, which they should have.

Even here, however, Lederer was cautious. He noted that there were 8 people who filled out one of the magically missing registration certificates, but might correspond to people already listed on the voters list. So in reality, only 41 votes were affected by the missing paperwork. There were also two other people at a different polling station whose registration certificates were lost but for whom the vouching signatures were properly written in the poll book, and he agreed that their votes could stand.

Several other cases also fall under this category. First, at another poll, a registration certificate was filed even though it was not signed. The Conservatives argued that the signature should not be required, but the judge disagreed and threw out the vote.

Second, at a fifth poll, 10 registration certificates were not signed by the voters, and which the voting officer placed his/her signature on the line where the voter was supposed to sign. The Conservatives argued that the voting officer must have “signed on behalf of the voter.” The judge disagreed, noting that without their signature there was no paperwork to prove that they had declared they were qualified to vote. Without that declaration, their votes couldn’t count.

6. Irregularities where vouching paperwork was flawed (27 votes affected) — If you don’t have the proper ID, someone who knows you still can swear or “vouch” that you are who you say you are — and that signature has to get taken properly too. Moreover, you can only swear for one other person per election. The Liberals argued that any error in the vouching process should result in disqualification.

To that end, they identified 22 people who they claimed were allowed to register without the required vouching. The Conservatives argued that it was unclear from the paperwork whether they actually needed the vouching or whether the voting officer’s notes were simply unclear on what had happened, and the judge agreed. He threw out these 6 objections.

With regard to 16 others, however, people clearly failed to provide the required ID and should have required vouching, for which no documents existed or for which the required forms were blank. The judge accepted this claim and threw out 16 votes.

Next, the judge noted 9 cases where vouching was done by people who didn’t live in the riding, and therefore weren’t allowed to vouch (you can only vouch for people in the same riding that you live in), and furthermore that 2 of these vouchers had illegally vouched for an additional person. That meant another 11 votes had to be thrown out because of illegal vouching.

All in all, Lederer found that at least 79 votes were cast improperly. Since this was more than the 26-vote Conservative margin of victory, legally he had no choice but to declare the election “null and void.” The Conservatives now have a week to appeal the decision to the Supreme Court. If they don’t, or if they lose the appeal, then Opitz will be evicted from the House of Commons and there will be a by-election in Etobicoke Centre.

As I have said so far, legally it doesn’t matter whether the 79 improper votes were really all for Opitz (in the event of fraud, for instance), or split evenly, or all for Wrzesnewskyj. We can’t be sure. That’s the reason, legally, why they have to be thrown out and why a by-election has to be ordered. If Opitz had won by enough that 79 ballots didn’t matter, his election would still stand.