The cases for and against vouching - Macleans.ca

The cases for and against vouching

Pierre Poilievre and Harry Neufeld on the voting procedure

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Among the more contested facets of the Fair Elections Act is its elimination of the “vouching” option, whereby anyone lacking the requisite proof of their current address can have a voter from the same polling division (neighbour, roommate) make a sworn statement that the individual is a resident of that polling division.

The constitutionality of this provision has been challenged and the numbers used by the minister to explain the change have been questioned.

After Mr. Poilievre and I spoke for this piece, he sent along a longer explanation of his views, an op-ed submitted as a response to the questions raised by Justin Ling.

Canadians can use 39 forms of authorized identification to prove who they are and where they live. If they fail to bring any of those to the polls, the law allows someone else to vouch for them. Due to massive irregularities in the use of vouching, the Fair Elections Act would end the practice.

I have pointed to an Elections Canada-commissioned “Compliance Review“, as evidence of the problem. It included audits of four ridings in which, “the level of irregularities for vouching averaged 25 percent.”(P.15)

Now, freelance journalist Justin Ling, has questioned both this fact and its importance. The fact comes from page 15 of the above-mentioned compliance review, authored in 2013 by Harry Neufeld, the former Chief Electoral Officer for the province of British Columbia. Mr. Ling correctly points out that the national rate of irregularities is actually 42%. The difference arises from the fact that the 25% number is an average of four ridings, and the 42% is a nationwide figure. At worst, I have understated the problem.

Either way, both numbers are correct-and both are shockingly high. Are they important? Mr. Ling argues that they are minor paperwork glitches having no impact on the integrity of the vote. Yet that is not what the report’s author found. Mr. Neufeld defined “irregularities” as “serious errors”—his words—not small details. “An ‘irregularity’ is a failure by an election officer to administer safeguards demonstrating that a voter is entitled to receive a ballot.” (p.63)

Mr. Ling correctly points out here that this failure does not automatically mean that the voter was not eligible to vote. But by that logic, we would not require any identification rules whatsoever and instead put the onus on elections officials to prove a person is not eligible. Someone could walk in, assert an identity and an address, and unless the officials could prove otherwise, the person would cast a ballot. We do not allow that, nor should we. ID requirements exist for a reason. Failure to properly identify voters—as so often happens with vouching—allows people to vote when they are not eligible or to vote more than once.

It should not be a guessing game. Yet that is what vouching has become in nearly half of cases where it is used, if you believe facts in the Elections Canada compliance report. “Serious errors, of a type the courts consider ‘irregularities’ that can contribute to an election being overturned, were found to occur in 12 percent of all Election Day cases involving voter registration, and 42 percent of cases involving identity vouching.” (P. 6). The latter point is particularly devastating. Judges don’t overturn election results for nothing. Yet the report says that “vouching” irregularities—which occurred 50,735 times (p.69)—are serious enough for a judge to consider doing so.

But that is not all. While vouching is theoretically intended to extend the right to vote, it may rob people of that very same right. When courts invalidate votes because of serious irregularities, there is significant chance that legitimate ballots can be invalidated along with them. In other words, a contaminated process can deprive even honest votes of being counted.

So why not simply administer vouching more competently, instead of ending it altogether? The answer is that quality assurances seem to do little to improve the situation, according to Neufeld. “During two of these elections, quality assurance programs involving Onsite Conformity Advisors (OCAs) were applied. However, vouching irregularities still averaged 21 percent during the OCA monitored elections. This indicates that overly complex procedures cannot be remedied simply by improved quality assurance.” (P.15)

It is important to let every eligible voter cast a ballot. That is why the Fair Elections Act allows another day of advanced voting and requires Elections Canada to advertise voter ID requirements. Every citizen is entitled to the voting franchise. Let us never forget that a fraudulent vote has the same mathematical effect as denying someone their constitutional right to cast a ballot. It cancels out the ballot of an honest person. Now, that is serious. Our voter identity laws must be too.

There were no doubt problems with vouching in the 2011 election. The Neufeld report counts 120,171 voters who were vouched for in 2011 (one percent of total voters). Of those vouchings, there were 45,868 cases in which the record in the poll book did not identify both a voter and a voucher, 4,866 cases in which the voucher was not from within the voter’s polling division (not to be confused with a riding) and 361 cases in which the voucher vouched more than once.

That said, the author of the Neufeld report, Harry Neufeld, thinks vouching could be fixed and that it should remain an option. “Vouching was completely fixable, absolutely. You need vouching,” he told me this week. “It’s kind of like the safety valve on your pressure cooker. People have a constitutionally guaranteed right to vote and if you’re in a situation where you’ve got somebody in front of you and they cannot provide ID that satisfies the identification requirements—and if you moved within a month of an election, I would defy you to be able to produce the documentation—but if your neighbour was there and they could vouch for you and say, ‘oh yeah, Aaron just moved in next door, he lives there’ … it gets somebody a ballot. And I think at the end of the day that’s really important.”

Mr. Neufeld argues that the trouble here is having a second piece of identification that includes your current address.  “If I take my driver’s license out of my wallet, I don’t have any ID that is acceptable under the 39 pieces that keep getting touted that have my current address on it … you’ve got to have two pieces, one that absolutely shows your identity and the second one that confirms your identity and absolutely indicates your residential address,” he says. “People who just moved for example. If you just moved and you took the time to get updated on the voter’s list, but you walked in, ostensibly to the next election, with your passport and with the card that Elections Canada sends to you in the mail saying this is where you go to vote–so you’re registered, you have a passport, [but] your passport doesn’t indicate your current address, it’s not acceptable, you’d be turned away from voting.”

Who might the elimination of vouching impact? Students, the homeless, aboriginals and those living in seniors’ residences. Mr. Neufeld notes that vouching is already restricted—”Somebody can only vouch for one other person and they have to live in the exact same polling division, they have to vote at the exact same polling station as somebody else that they’re vouching for and they have to be able to show all their ID and they have to be on the list and registered”—and that, in the case of Etobicoke Centre, the Supreme Court found no evidence that anyone who shouldn’t have been able to vote was able to vote as a result of errors in the vouching process.

Instead of eliminating the vouching option, Mr. Neufeld argues that the process has to be clarified. “There are so many exception procedures that election officials have to learn how to handle that they just don’t learn how to handle them all well enough. That whole process needs to be streamlined. They need to make it less legalistic, more straightforward in terms of filling out the forms. The language in the poll book was confusing, the language in the Act doesn’t help. It’s all very, very Byzantine,” he says. “It’s not easy for a person who’s doing a one-day job and is getting two, two-and-a-half hours of training to master one of something like 17 different exception situations that they had to be able to handle. And they got it wrong. But that doesn’t mean it couldn’t be fixed. And I know that Elections Canada was doing work on streamlining the forms, streamlining the instructions, making it really, really clear who the voucher and the vouchee was, providing some really good training materials on this particular aspect of the election and I think the number of problems, while they probably wouldn’t have gone to zero, they would have been greatly, greatly minimized in this next election, if vouching had been allowed to stay on.”

Mr. Neufeld points to the New Brunswick model for voting. In his report, he also recommended “widening use of the Voter Information Card as a valid piece of address identification for all voters.”

Mr. Poilievre maintains that all eligible voters will be able to vote without the vouching option—aided by an expanded public awareness campaign by Elections Canada—that the vouching system can’t be sufficiently fixed with improved administration and that the voter-information-card system is itself too fraught with errors to be used reliably. “My view,” he said in an interview today, “is that given the enormity of the error rate, it is impossible for administrative changes to render vouching secure and that we’re better off to remove it and replace it with better information from the agency.”