Further reading on the Fair Elections Act

Further to yesterday’s events, the chief electoral officer of the Northwest Territories, David Brock, has posted both his opening statement to the Procedure and House Affairs committee and a longer briefing on his concerns about the Fair Elections Act.

Here, meanwhile, is the prepared text for the opening statement delivered by Keith Archer, chief electoral officer for British Columbia.

I thank the chair and the members of the committee for inviting me here this morning. I am Keith Archer, Chief Electoral Officer of British Columbia, an appointment I have held since September 2011. Prior to this appointment, I was a professor of political science at the University of Calgary for 27 years.

Bill C-23 contains more provisions than I can address in the short time available to me. Consequently, my comments focus on two themes that go to the heart of some of the key provisions of the bill, and which were discussed by the minister responsible in a newspaper article yesterday.

(1) voter identification and the accessibility of the ballot, and
(2) citizen engagement in the electoral process

Because Canada does not maintain a national citizen registry or issue universal national identity cards to all citizens, the federal jurisdiction, and many provinces, have adopted some version of the same framework to provide proof of identity and current residential address for voting—a Type 1 document, that is a government issued identity document with photograph, name and residential address; OR two Type 2 documents, one of which has a person’s name and one which has name and residential address; OR the Type 3 process, as a failsafe mechanism, the use of vouching.

Bill C-23 makes it more difficult to satisfy voter identification requirements by removing the Voter Information Card from the list of approved Type 2 documents, and by eliminating vouching, the failsafe method. I would encourage a re-thinking of both of these changes.

Only about 85% of Canadians possess a Type 1 identity document (such as a driver’s licence). For those 18 or 19 years old, it’s about 60%. For those over 65, it’s about 70%.

Type 2 documents are necessary to ensure that the millions of other eligible voters who don’t have a current driver’s licence can still exercise their Section 3 Charter right to vote. The list of Type 2 documents that are approved is quite extensive. The independent, non-partisan election administration agency approves Type 2 identification documents, usually following extensive discussions with various service providers, to ensure that classes of voters are not administratively excluded from voting.

We recognize that these identity documents, considered individually, are imperfect. Requiring that voters produce two such documents increases one’s confidence that they establish the voter is who he purports to be. And this is added to other checks in the system, such as having voting take place in a public space, providing candidates the opportunity to scrutinize the voting process and challenge voters on the right to be registered and vote, hiring election officials from their local communities, and levying substantial penalties for voter impersonation.

The Type 2 identification requirements strike a balance between proof of identity with certainty while ensuring an accessible ballot. The only document on the Type 2 list controlled by the election agency is the VIC (or WTV in the case of BC). As we focus our efforts on continually improving the quality of the voters list, we continue to improve the quality of the VIC (WTV card).

The other voter identification issue in Bill C-23 is the removal of the vouching procedure. In the 2013 general election in BC, vouching was used by about 14,000 voters. Just under 1% of all votes cast were by voters who were vouched for. Our analysis reveals that vouching is more common in rural districts and in mixed urban-rural districts.

There is no doubt that vouching adds complexity to the voting process in BC. And, since the election official overseeing this process only receives a three-hour training session on all aspects of voting administration, we recognize that there may be minor administrative errors in completing this process.

But let’s not confuse minor administrative errors, such as a voter not signing the vouching form in the right place, with election fraud. An analysis of administrative errors in vouching in BC’s 2013 election showed fewer than 1000 such minor errors among the 1.8 million votes cast, and no indication of election fraud in any of these cases. Simplifying vouching procedures can dramatically reduce the error rate.

But the bottom line for vouching is this. Vouching allows 10s of thousands of voters in BC, and over 100,000 voters in federal elections, to exercise the franchise for which their citizenship entitles them. There is no evidence of which I am aware that links vouching provisions in Canadian elections with voter fraud, and there are many safeguards in place to ensure that this is the case.

The last point I wish to make concerns citizen engagement in Canada’s electoral process. In British Columbia, Elections BC is the province’s window into the world of election administration. We are the people that are engaged to think about these issues every day of the year, to understand current research, trends and best practice in other jurisdictions, and to ensure this expertise benefits our citizens, and provides the best advice possible to policy-makers.

We have a particular role to play in removing barriers to participation so that all eligible electors can exercise their franchise. At times, this can mean focusing extra efforts on citizens who face more substantial barriers than their neighbours. The right to vote is not diminished because a citizen is young, or a new Canadian, or because they recently moved and their identity documents have not been updated.

It also means that we have a role to play in fostering public discussion about electoral matters. I was very pleased recently to head a panel in British Columbia that issued a report to the legislative assembly regarding the use of internet voting. We benefitted considerably from previous work by our colleagues at Elections Ontario and Elections Canada. We also recently collaborated with the Centre for the Study of Democratic Institutions at the University of British Columbia on a conference on the 2013 BC election.

All of which is to say that there are a number of groups that have an interest in fostering the democratic process – political parties and candidates, civil society organizations, scholars, activists, and not least of which, election administration agencies. Indeed, our election agencies in Canada are the only group that is specifically designed to take an independent, non-partisan approach to citizen engagement.

I would encourage the committee to reconsider limiting the role of Canada’s independent election agency from this important work. Elections Canada’s current and past work stands as an international exemplar of election administration best practice.

With that, Mr. Chair, I am happy to turn the floor back to you.

Graham Fox, president of the Institute for Research on Public Policy, will be among those testifying tomorrow. He authored a report for the IRPP on fraudulent phone calls that was released a year ago.

And six academics have now responded to Pierre Poilievre’s defence of the Fair Elections Act.

The Minister cites the Neufeld Report for the idea that courts “refer to such serious errors as ‘irregularities’ which can result in votes being declared invalid.” The Supreme Court has since spoken on this issue. Last year, it held in Opitz v. Wrzesnewskyj that “incorrect record-keeping of vouching, on its own, cannot amount to an ‘irregularity’” that would overturn an election result. The Court emphasized that our fundamental Charter-protected right to vote must be protected, in part by interpreting statutory language in a way that is enfranchising.

We also note that Mr. Neufeld did not recommend that vouching be eliminated because it is an important backup to ensure the right to vote. He did make the eminently sensible suggestion that the record-keeping requirements for vouching should be simplified. He also suggested that there should be better training of poll workers. Mr. Neufeld also recommended that the use of Voter Information Cards (VICs) should be expanded. Evidence from previous elections suggests that, for many Canadians, presenting ID to prove their current address is a barrier to voting … But VICs, the only document issued by the federal government that gives current address – and with an address accuracy rate higher than that of driver’s licenses – would be prohibited by Bill C-23. Why?

See previously: The NDP wants to keep talking about the Fair Elections Act