In Etobicoke Centre, a new election is not enough

Why the Supreme Court should change the law, instead

by Adam Goldenberg

Sean Kilpatrick/CP

Adam Goldenberg is a Kirby-Simon Fellow at Yale Law School. He was a Liberal staffer on Parliament Hill and at Queen’s Park. Follow Adam on Twitter at @adamgoldenberg.

Last week, I argued elsewhere that the Supreme Court of Canada should overturn an old piece of judge-made election law, the magic-number test, which says that an election should only be voided if the number of tainted ballots exceeds the margin of victory:

 “The magic number test implies that, in an election, who won matters more than who voted for whom. If it were otherwise, the margin of victory would be irrelevant; only the voting irregularities themselves, their number and severity, would decide whether or not a new election is justified. Instead, our courts have allowed efficiency to limit democracy—in the very cases where the latter is most in question. . . .

The magic number test is too simple, too crude. It fails to distinguish between ‘the result of the election’ and the outcome—the result being the final vote tally, the outcome being the winner.”

I made the same point yesterday:

“The question for the Supreme Court, under a truly democratic interpretation of the Canada Elections Act, is not who should or should not have won, but rather whether the result — that is, the number of votes cast for each candidate — was affected by Election Day irregularities. Votes for Mr. Optiz and Mr. Wrzesnewskyj are not the only ones that matter. Why count every vote unless every vote counts?”

Some very smart people think I’m nuts. It’s wrong, they say, to distinguish between the result of an election and its outcome, particularly since, under section 524(1)(b) of the Canada Elections Act, “the result of the election” is what matters—under the Act, if “the result of the election” was “affected” by “irregularities, fraud or corrupt or illegal practices,” then a court can toss it out and order a new vote.

Some very smart people think that, unless we want to have a by-election every time a few ballots go awry, “the result of the election” must mean the winner, not the raw number of votes cast for each candidate. If the number of “irregularities” is smaller than the margin of victory, they say, then “the result of the election” cannot possibly be “affected.” In other words, some very smart people think the magic-number test works just fine.

I disagree.

Start with the Act itself. Section 524(1) indicates that “the result of the election,” means the number of votes cast for any candidate, not just one of the first- or second-place finishers. It reads as follows:

“Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district . . . “

If “the result of the election” were the same as the outcome—that is, if the “irregularities” in question could only “affect [...] the result” if there were enough of them to change who won—then why would the Act allow any candidate, not just one of the two who could be “affected,” challenge the “result” in court?

My guess: it would not. The Act gives every candidate the legal standing to challenge the “result” because the “result” is something that affects every candidate; the “result of the election” is the final vote tally, which shows who voted for whom, not just who won.

But perhaps, as some very smart people claim, section 524(1) permits “any candidate in an electoral district” to “contest the election” in court because some candidates are not also “elector[s] who [were] eligible to vote” in the same constituency. True, there is no rule against running in a riding in which you do not live, and if the Act only allowed eligible electors to challenge irregularities, it could leave certain candidates powerless to contest the result of an election in which they themselves were on the ballot.

Fair enough, but the question yet remains: Why would the Act allow “any candidate” to contest an election “result,” if the “result” were not something that could affect any candidate?

You may not be convinced. But if you still believe that the Supreme Court should uphold the magic-number test, or if you still think that the Canada Elections Act says that a court can order a new election only if it finds enough irregularities to affect who won—if you agree, in other words, with some very smart people who say that “the result of the election” is the same as the outcome—then consider this imaginary example from the not-too-distant future:

In late 2012, Prime Minister Stephen Harper calls a by-election in Calgary Centre, to replace retiring Conservative MP Lee Richardson. On election night, the Tory candidate wins handily, while the Liberal hopeful finishes a distant third.

Two years pass. With six months to go until the 2015 federal election, the Liberals still lag in the West, despite the Pacific pedigree of their new leader, David Merner, the former president of the party’s British Columbia wing. Facing a Western wipeout, but desperate to keep Liberal hopes alive west of Winnipeg—and to help Merner keep his job—the rookie leader’s campaign staff come up a cunning plan: a surprise surge to second place in Calgary Centre, the site of the party’s humiliation two years before. Winning the riding would raise too many eyebrows, but a runner-up result in the Conservative heartland would still suggest, at the very least, that the party still has a pulse past the Prairies.

On Election Day, everything goes according to plan. Liberal voters from neighbouring ridings register to vote in the targeted riding with fraudulent identification, as Liberal partisans disguised as Elections Canada officials “forget” to fill out the necessary paperwork. The ballots are counted, and the pundits are perplexed; the Liberals have come second in Calgary Centre—far behind the Conservatives, but well ahead of the NDP. David Merner becomes the first Liberal leader since John Turner to keep his job after an election defeat.

In this hypothetical election, the outcome is obvious: the Tory candidate is the winner. But is that the same as the result?

Say the final vote tally looks something like this: 30,000 votes for the Conservatives, 26,000 votes for the Liberals, and 24,000 for the NDP. If, under the Canada Elections Act, “the result of the election” is the same as its outcome, then the NDP’s votes are all but irrelevant, as is section 524(1)(b); the number of ballots tainted by “irregularities, fraud or corrupt or illegal practices” would have to exceed 6,000—the difference between the Conservatives’ vote count and the NDP’s—before a dispute involving the third-place finisher could possibly “affect the result.” If there were more than 4,000 voting irregularities, then a court could still use the magic-number test, but to benefit the Liberals, not the NDP.

Now, say the number of voting irregularities—ballots cast for the Liberal candidate as the result of “irregularities, fraud or corrupt or illegal practices”—is 2,500. The NDP candidate could still challenge the election in court, under section 524(1) of the Canada Elections Act, but to no avail; the number of tainted ballots still does not exceed the Tory candidate’s margin of victory, as the magic-number test requires. The challenge would fail. The final vote tally would stand.

Tell me: In this example, is “the result of the election” the same as the outcome? You may still believe that the latter matters more than the former, but the two are certainly not the same.

If the Supreme Court upholds the magic-number test when it decides the Etobicoke Centre election dispute, then a future court, faced with the Liberals’ Calgary Centre caper, would be unable to order a new election.

But if the Supreme Court rejects the magic-number test—and states clearly that “the result of the election” means the final vote tally, not the winner—then a future court would have some wiggle-room in such an exceptional case, as well it should.

We tell ourselves that, in a democracy, every vote matters. Our laws should say the same.

In the comments below, a reader asks—as have several others on Twitter —for an alternative test to the magic-number rule. After all, if “the result,” under the Act, means the number of votes cast for each candidate, then any number of tainted ballots could be enough for a court to overturn an election. Rather than hold a by-election every time a voter registration certificate goes missing, some other standard ought to apply.

Let me suggest one: reasonableness.

Ignore, if you will, the sound of everyone who has ever gone to law school groaning in unison; for centuries, and to law students’ collective chagrin, lawyers and judges in the English-speaking world have put “reasonable limits” on just about everything. Reasonableness shows up first-year Contracts and Torts, and even in the Canadian Charter of Rights and Freedoms, section one of which puts reasonable limits on the rights and freedoms that follow.

If the Supreme Court overturns the magic-number test, it can substitute a standard of reasonableness in its place, and set “reasonable limits” on a court’s determination that some number of irregularities “affected the result of the election” under section 524(1)(b). The meaning of “affected the result” is already limited by the magic-number test—moving that internal threshold to a standard of reasonableness seems, well, reasonable.

But what is reasonable? When can “irregularities, fraud or corrupt or illegal practices” reasonably be said to have “affected the result of the election?” A court might put the question this way:

Are the proven instances of “irregularities, fraud or corrupt or illegal practices” sufficiently severe and numerous so as to bring the democratic process into disrepute, such that a new election is a reasonable remedy?

If the answer is “yes,” then the court should follow section 531(2) of the Canada Elections Act, and invalidate the result. If the answer is “no,” then it should not.

Hang on, you say. Surely this formula gives judges far too much leeway. Surely we need a bright-line rule, based on simple arithmetic.

But broad judicial discretion is already written into the Act. Section 531(1) provides that “[t]he court may at any time dismiss an application if it considers it to be vexatious, frivolous or not made it good faith.” Such a decision cannot even be appealed.

When the facts may differ dramatically from one dispute to the next—and where the integrity of our democracy is potentially at stake—why would we handcuff our courts to a single, simplistic rule? We pay judges to make tough decisions. We should let them.

At the end of the day, most cases will produce similar judgments, whether or not the Supreme Court keeps the old test. A disputed election in which there were 50 proven irregularities and a margin of victory of 15,000 votes would almost certainly flunk both the magic-number test and the proposed reasonableness standard.

But in exceptional cases, like the hypothetical Calgary Centre controversy described above, the reasonableness standard would at least give judges the power to decide on a case-by-case basis. The magic-number test would not.


In Etobicoke Centre, a new election is not enough

  1. This would have been much more thought provoking if the author had proposed an alternate criteria for triggering a new election. As it stands, one is driven to believe that a single improper ballot (or a single eligible voter denied the opportunity) is the suggestion.

    The example given also seems flawed. It would appear the current practice is that any electoral result can be reviewed by the court. So the court could make a public finding that those nasty Liberals were up to no good in Calgary South. That would be enough, and the public would not be well served by a new election.

    • And in fact penalties could still be imposed, including fines and up to the big gun of forced party de-registration. So it’s not like there is no avenue for redress.

      • I am more interested in seeing by-elections (notice the pluarl) and keeping Kingston Pen open for all involved in electoral fraud.Minus of course those citizens cooperating with Elections Canada in their investigation.

        • You mean like that Elections Canada official that set up an unauthorized or improperly authorized polling station on the Guelph campus?

          According to Mr. Goldenberg, we shouldn’t we also be having a byelection in Guelph.

          The Liberals and NDP and the media demanded that the votes collected at an unauthorized polling station be counted.

          Be careful what you wish for.

  2. Is there caselaw suggesting the NDP candidate could not mount a successful challenge because the number of ballots could affect the winner but not that party? Because that doesn’t appear to be the wording of the Act.

    • Never mind I initially misread the number of votes cast in the example.

  3. Nice picture of the U.S.S.C.

    • No it isn’t.

    • Because the U.S. Supreme Court regularly flies the red maple leaf in front of it. I’m sure.

  4. Adam,
    I’m afraid your wrong about this.
    First, if your interpretation is correct, why would Parliament have felt it neccesary to specify that elections are nullified only if the illegal behaviour affects the oucome (which you read as the “result”). Presumably, if every vote matters, any fraud, irregularity, corrupt or illegal practices would, on their own be sufficient to nullify the election (unless one believes that its possible to engage in such activities without affecting the result). The addition of the “affect the oucome” language clearly suggests the intention to add a materiality requirement – elections shouln’t be nullfied because a handful of votes were affected unless it has a material impact on the outcome (i.e., the winner).
    I think that interpretation gains support when you look at paragaraph 524(1)(a). That paragraph (coupled with subsections 523 and 531(2)) nullify an election where “the elected candidate” was not eligible to be a candidate.
    There’s a paragraph which suggests that Parliament was only concerned about who the winner was, i.e., the outcome of the election. It doesn’t nullify the election, for example, if an ineligible candidate finished second (say, in your example, it turned out that David Mermer hadn’t filed his return from a previous election in a timely manner) if it was the “result” that mattered, the fact that a candidate wasn’t eligible would have deprived voters of the meaningful exercise of their right, regardless of whether the person who finished 1st, 2nd or 3rd (or 10th) was not an eligible candidate. It would be an odd interpretation of the statute to think that Parliament cared only about who won in one paragraph, but about the result (even if the oucome wasn’t affected) in the next paragraph.
    In addition, even if your interpretation of paragraph 524(1)(b) is right, query if the court isn’t correct to dismiss such complaint under subsection 531(1) as being frivolous if the alleged improprieties didn’t affect the outcome. As Stewart points out, a strict interpretation of the law along the lines you propose would require that democracy be held hostage to the actions of any one elector/election worker, etc. Certainly, that’s a provisions which suggests that parliament didn’t believe that “every vote matters”, or at least not that “every vote matters” when it comes to nullifying elections. And in practice, that conclusion only makes sense since “irregularities” (which can include innocent mistakes or misunderstandings) are a near universal feature of Canadian elections.
    As for your “any candidate” analysis, I think the alternative interpretation (i.e., that it was intended to allow candidates who aren’t electors to challenge results) is much less of a stretch that the interpretation you propose.
    Finally, in your hypothetical example, why would calling a new election be the proper remedy in that case? While it would surely be appropriate to deprive the Liberal party of an undue advantage that it accrued as a result of the illegal acts of its officials, it seems to me that the fact that such people can be readily prosecuted for the various offenses set out under sections 480-499 of the act, would go a long way to achieving that result (picture the headline: “Liberals Finish Second: Campaign Manager Indicted for Election Fraud” – not really a winning headline is it?)

  5. Tighter control of who gets to vote helps the “elites” and the “wealthy”. The loose registration requirements which caused the problems in Etobicoke Centre will discriminate against the poor and poorly educated.

    Be careful what you wish for, Mr. Goldenberg.

    • That should read. If the loose registration requirement which cause the problems in Etobicoke are tightened, this will discriminate against the poor and the poorly educated.

  6. s. 309 of the Act (which deals with recounts) also seems to suggest that there is a difference between ‘the result of the vote’ and ‘the return’, consistent with Adam’s point. I think this has to be the case, because if only the winner mattered you would be left with the untenable situation in which an election fraught with irregularities or fraud could not be nullified even where the inproprieties were so gross and repugnant that they would signifcantly undermine public faith in the democratic process if allowed to stand.

    The real sticking points for me are the word ‘affected’ in s. 524(1)(b) and the use of the imperative ‘shall’ in s. 531 (2).

    This is where the argument that, under Adam’s interpretation, any irregularity shall result in a new election. But in order for this result to occur, the court would have to give the word ‘affected’ its broadest possible meaning.

    I’d argue that the courts should apply the de minimis rule and interpret the word ‘affected’ as meaning sufficient to undermine public confidence in the electoral process. This would be consistent with the purpose of the Act and the Constitutional protection afforded to the democratic franchise that underlies it.

  7. A well presented, thought provoking article.

  8. A lot of fancy justification, but what doesn’t make sense to me is why the winner should have to run in another election when he or she was neither responsible for, nor benefited from, the alleged fraud. If the second place candidate attained second place on the basis of fraud, why should the winner be punished and be made to run in another election? The Supreme Court got this decision right.

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