Tuesday, May 29, 2012

On keeping elections out of court

Now that Conservative Ted Opitz has launched his appeal of the nullification of the Etobicoke-Centre election result, it looks like a bit of a public relations effort has started by Conservative friendlies to raise doubt about the judgment. See Tom Flanagan in the Globe today fixating on the 79 votes that the judge found to be irregular and therefore a sufficient margin to overturn a 26 vote election margin.

Flanagan applies the vote distribution obtained in the election to the 79 votes and thinks it's unlikely that the election result would have been different. There's an issue with fixating on the 79 votes though.

Those 79 vote irregularities were found as a result of a consent process during the application in order to allow it to proceed "in a summary way" as the Elections Act contemplates. Wrzesnewskyj agreed to limit his case to an examination of just 10 polls in the riding (para. 22 of judgment). So finding 79 voting irregularities in just 10 polls suggests that there were many more to be found. Applying a strict test to how those 79 votes might have gone misses this context. (Wrzesnewskyj attended our Parkdale-High Park federal meeting this past Saturday and he related how his lawyer wanted him to push to include more polls but Wrzesnewskyj consented to the narrowing of the case regardless.)

It also seems wrong, on its face, to presume that votes would go just as the election percentages went. It's a fair bet but you just don't know. The irregular votes are just that and are indeterminate. Each vote should be assessed on its own, if that's possible in the face of whatever the irregularity is. But arguing to apply the election percentage results retroactively is arbitrary.

Further, it seems to me that the answer is not to to be spending time arguing for narrow mathematical certainty in the legal tests to be applied at the back-end when you're counting votes in court. That doesn't seem a likely thing for the Supreme Court to do at this stage in any event. It has been acknowledged throughout the discussion of the Etobicoke-Centre case (and the robocall lawsuits) that the election irregularities part of the Elections Act has not been widely litigated. So it is unlikely that the Supreme Court would seek to narrow the standards to be applied from here on out. They're more likely to be cautious and leave room for the law to develop.

The larger answer, really, is to properly resource Elections Canada up front so elections are run in as air tight a manner as humanly possible so that we don't end up with election irregularities - including preventing election agitators from shutting down polling stations - that lead us to court challenges. That's a better way to keep elections out of court.

Anyway, we await the Supreme Court's determination and should not be so fussed with opinion maker speculation.