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June 6, 2012 - No. 85 Legal Challenges to the Legitimacy of the 2011 Federal Election The Conservatives vs. The People Legal
Challenges
to
the
Legitimacy
of
the 2011 Federal Election For
Your
Information Legal Challenges to the Legitimacy of the 2011 Federal Election The Conservatives vs. The PeopleThe Harper Conservative Government never fails to claim that it is ruling with a "majority mandate." In his victory speech on May 2, 2011 Prime Minister Stephen Harper declared that the 41st General Federal Election had given rise to "a strong, stable, national, majority Conservative government." He said this even though the "majority" was won with the votes of only 24 per cent of eligible electors, 5,835,270 out of 24,257,592 on the National Register. Now, one year into their majority government, how the Conservatives won their "majority" is under considerable scrutiny and the subject of several legal challenges. The cavalier and self-serving manner in which this party treats the electoral law seriously erodes the very conception that the elected party government enjoys the support of the electorate. An election is supposed to confer legitimacy on elected government by enabling the expression of the popular will and converting it into the legal will. If the election is not perceived to have permitted the expression of the popular will and the results are seen to have been manipulated, then its very aim is undermined. The legitimacy of the government is undermined by the lack of legitimacy of the party which forms the government and the elections which brought it to power. The Conservatives had 143 seats when the 2011 election was called and needed twelve new seats to form a majority. They increased their overall vote by 626,201, equivalent to 2.6 per cent of the eligible voters and won 166 seats -- 26 more than when the election was called. Twelve of the new seats they won were secured with a margin of victory of less than five per cent. Taking these twelve ridings, the plurality that allowed the Conservatives to cross the majority threshold totalled a mere 6,570 votes: 18 votes in the riding of Nipissing-Timiskaming; 26 votes in Etobicoke-Centre; 79 in Labrador; 132 in Yukon; 300 in Elmwood-Transcona; 539 in Bramalea-Gore-Malton; 611 in Don Valley West; 676 in Mississauga-East-Cooksville; 722 in Winnipeg South Centre, 870 in Don Valley East; 932 in Willowdale; 1,665 in London North Centre. The Conservatives have themselves claimed that micro-targeting was the key determinant in their victory. Speaking at the Conservative Party Convention held shortly after the 2011 Election, Senator Irving Gerstein boasted about the party's "Constituency Information Management System" (CIMS). "The database-driven voter identification and GOTV (Get-Out-The-Vote) programs," he said, "accounted for the margin of victory (emphasis added) of some 40 Conservative MPs. Yes, you heard me. There are roughly 40 Conservative members in the House of Commons who would not be there were it not for our party's extremely effective use of its data-base." The use of the term "margin of victory" is not irrelevant.
The CIMS boasted of by Gerstein is a barcode-based system to track electors. All electors in the database have been assigned a barcode. Descriptors such as "Liberal supporter" "undecided" "non-supporter" also have barcodes. There are also barcoded categories for individuals who display NDP or Liberal lawn-signs. Data-entry is quickly done by scanning the elector's barcode and then scanning the appropriate descriptor barcode. Information from many different sources are put into the database, one of them being live-time information on who has voted provided by Elections Canada poll workers. This information can be immediately transmitted to party operatives to give them a fairly accurate view, before the polls close, of where there are tight races and where a handful more votes can make a difference. The extent to which the Conservative Party made "extremely effective use of its data-base" is continuing to come under scrutiny. It is known that micro-targeting is used to get the vote out by hook or by crook through segmented direct appeals that by-pass public debate and discourse. The question now at issue is whether the information gathered about electors was also used to impede electors from exercising their right to vote if they were not identifiable Conservative supporters. This issue of TML reports on legal challenges involving seven of the tight-race ridings listed above, plus the riding of Vancouver Island North. Of particular significance to readers are the arguments of the Conservative Party to have this entire issue dismissed. The Conservatives argue that the lawsuits are frivolous because they would not affect the outcome of the election which gives their party a majority government. This shows the degree to which this party and this government treat the electoral law with contempt. Their notion of accountability is clearly based on something quite different to that held by the Canadian people. The other argument is contained in one of the motions
filed by the
Conservative MPs to have the legal challenges dismissed. This motion
impugns the motivation of the people who have filed the applications,
particularly the Council of Canadians who they accuse of "stirring up
strife." While the Conservatives
are entitled to due process, this attempt to have the motions dismissed
seems more like a spurious attack on the right of Canadians to organize
and seek legal recourse. It merits study and consideration. The
Conservatives have become past-masters at diverting from the essence of
the matter by launching personal attacks against their opponents. This
serves to depoliticize the polity even further and achieve the
neoliberal aim of letting private interests take over the public
institutions TML also reports in this issue on a study commissioned by the Office of the Privacy Commissioner of Canada on the collection of data about electors by political parties and the related issue of the right to privacy. The Marxist-Leninist Party of Canada opposed the 2006-7 reforms to the electoral act which facilitated the data-mining, particularly the introduction of elector ID numbers. While the political parties in the House of Commons argued in favour of this change in the name of combating "voter fraud," it had everything to do with making it easier for them to keep track of electors and "manage" their database. The MLPC also opposed the introduction of Bingo Cards which turned Elections Canada workers into the tools of the political parties, tasking them with providing the ID numbers of electors as they vote. These reforms were not matters of efficiency, combating fraud, and keeping pace with "technological development" as claimed. They serve to cover up the real problem that the political parties have long ceased functioning as primary political organizations within the polity to connect the citizenry to political power. They cannot even recruit sufficient numbers of volunteers to mobilize the electorate behind their party's program. The upper echelons operate as an integrated whole with marketing, telemarketing and data-mining firms. Meanwhile, the fight for the spoils of political power has become sharper than ever leading to the use of means which are rarely fair and usually foul to achieve that political power. The developments since the last election and the one
before raise
serious questions about the use of micro-targeting and related voter
suppression techniques and their deleterious impact on the rights of
Canadians. They deepen the crisis of an electoral process that is
already in deep crisis and of the legitimacy
of party government. Robocall Scandal Legal Challenges Allege Voter Suppression
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Appearing before the
Standing Committee on Procedure
and House
Affairs on March 29, to speak on the subject of
"Wrong-doings in the 41st General Election," Chief Electoral Officer
Marc Mayrand stated: "As you are aware, there have been a significant
number
of media reports in recent weeks concerning various allegations of
wrongdoing during the 41st general election. Most of these relate to
complaints made by electors regarding different forms of improper or
fraudulent telephone calls. In that context, concerns have also been
raised regarding the
administration of the vote ... This includes allegations of unusual
numbers of polling day registrations, people registering improperly and
voting by non-citizens. These are very serious matters that strike at
the integrity of our democratic process. If they are not addressed and
responded to, they risk
undermining an essential ingredient of a healthy democracy, namely the
trust that electors have in the electoral process." Conservative Party CIMS presentation. |
Another affidavit is sworn by Bob Penner, President and CEO of Strategic Communications Inc, one of the first Canadian firms to specialize in voter contact. His company has developed and implemented sophisticated voter contact programs and other tools for a variety of clients.
Alluding to claims by the Conservatives that they do not know who made the calls, Penner states: "access to data across several ridings of pre-identified non-supporters of a political party would be available to very few people, and their access to and use of such data could be easily tracked by senior members of the central campaign, who would be responsible for managing the party's central information system and for their campaign overall. If there was a 'hack' of the system, this would also be identifiable by those running the campaign."
Finally, the applications are backed up by a study conducted by EKOS Research Associates in which a sampling of electors was called in the seven ridings to determine the extent and nature of the alleged voter suppression campaign. A Council of Canadians press release announcing the results of the study quotes EKOS president Frank Graves: "our data strongly suggests that in the subject ridings there was a targeted program of voter suppression in place... administered to tens of thousands of electors" and that "the most plausible interpretation of the evidence and tests presented here is that votes in the subject ridings were exposed to a program of voter suppression which was targeted and effective."
Key findings found in all seven ridings are cited: "16.9% of eligible voters received calls related to polling stations. Of those, 22.3% were told of polling station location changes (amounting to 3.77% of eligible voters). Of those who were told of polling station changes, the voter intentions were as follows: Liberals 32.6%, Greens 28%, NDP 25.6%, and Conservatives 10%; 42.5% of eligible voters who received calls related to polling stations had a call claiming to be from Elections Canada."
Conservatives' Response
The Conservative
MPs elected in the seven ridings where the results are being challenged
have filed motions to dismiss the
applications. The motions, filed on May 22 and 24, raise several
grounds for dismissal.
In the first motion, the Conservatives raise two issues. First they say that no evidence is presented to prove that calls directing voters to the wrong polling stations affected the results. The applications, they say, are based on "sweeping generalizations about an alleged voter suppression campaign."
Secondly, they argue that the applicants missed the 30-day deadline for filing. The Elections Act says an application must be filed within 30 days of either the day that the election result is published in the Canada Gazette or the day "the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice," whichever is later. The Conservatives say that since the applicants heard about the calls that were misdirecting voters in Guelph during the election, May 26, 2011 should be used as the 30-day trigger date.
In the second motion, the Conservatives impugn the motives of the Council of Canadians in its support for the legal actions, suggesting that the individual applicants are "surrogates" for the Council and that the applications are "brought by 'electors' in name only." Since only electors are entitled to file and in this case they are "surrogates," the applications should be dismissed, they say.
In this regard, the motion accuses the Council of Canadians of practising "champerty and maintenance" and "wanton or officious intermeddling."[1] The Council is involved, the motion says, "for the 'improper motive' of attacking only Conservatives, consistent with their very vocal opposition of and malice towards the Conservative Party of Canada."
The Conservative motion describes the legal challenges as "a prime example of the Council ‘stirring up strife' and litigation in others ... to attack its political enemy, the Conservative Party, rather than to assist citizens in asserting extant, legitimate legal rights." The Council is also accused of using the court case for pecuniary benefit to advance its political aims. The motion states: "The Council, and its National Chairperson, Maude Barlow freely admit the antipathy they feel towards the Conservative Party. Barlow has been a virulent critic of Prime Minister Harper and the Conservatives since at least 2004 ... [I]t is evident that Council's ‘business plan' is to leverage anti-Conservative sentiment in order to raise money and continue to employ professional agitators like Ms. Barlow."
In concluding points, the Conservatives state: "The Council wishes to take issue with the majority Conservative government that resulted from Canada's 41st General Election and is going to great lengths -- including abusing the Court's processes -- to overturn that result, and along with it the will of the electorate as expressed through the democratic process." The Conservatives ask the Court to dismiss the applications because they are "frivolous, vexatious and an abuse of process." The second motion to dismiss can be read in full below.
Note
1. Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit. It is "A taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right." "Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer. Among laypersons, this is known as "buying into someone else's lawsuit." "Intermeddling" is defined by the Black's Law Dictionary as "interfer[ing] wrongly with property or the conduct of business affairs officiously or without right or title." (Wikipedia and Black's Law Dictionary)
Council of Canadians Responds to
Conservative Motion to
Dismiss
The Council of Canadians has issued two press releases responding to the attempt by Conservative MPs to have applications contesting the outcome of the May 2011 election in seven ridings won by Conservatives dismissed. The Council of Canadians states that the Conservatives' claim that the applications are "frivolous, vexatious and an abuse of process" has no credible basis. It says that the Conservatives are attempting to have the Court disregard evidence that has been presented, such as the evidence set out in the EKOS Research Study. It concludes the Conservatives' decision to ignore the existence of this evidence will be "fatal" to their attempt to have the case dismissed.
As to the argument that the applications were filed after the 30-day deadline, the Council argues that if the Conservative argument holds, any elector who suspects some irregularity would have to run to the court immediately or "lose his or her right to contest the outcome of the election if facts subsequently come to light that the call was part of an organized and successful effort to suppress the vote." Further, the Council states: "The argument would open the floodgate for dirty tricks because perpetrators would only have to cover their tracks for 30 days to secure the result of an election that was fraudulently obtained." The Council argues that the applicants did not suspect that calls they received were part of an orchestrated voter suppression campaign until late March and April 2012 when media coverage brought the facts to light and their applications were filed within 30 days of those disclosures.
In regards to the Conservatives' attempt to have the applications dismissed on grounds that the Council of Canadians' motive is improper, the Council contrasts the Conservative response with that of former Chief Electoral Officer Jean-Pierre Kingsley who praised the Council's actions. It writes: "We invited Canadians to share their election experiences with us and to learn about their legal rights under the Canada Elections Act." Kingsley stated: "Canadians need to understand their rights in the Act. If an individual elector in a riding feels that there has been an irregularity, fraud, corruption or illegal practice that has affected the result, they can launch a legal action to annul the result. It's great that the Council of Canadians is working to inform Canadians of this right."
As for the applicants being "surrogates," the Council states: "Those who were willing were put in touch with legal counsel. Decisions about launching applications were made by the individuals." Further, on the matter of the Council attempting to use the case to generate funds for itself, it states: "The Council has agreed to pay the legal costs of the applicants and is fundraising for that purpose. We expect that our fundraising efforts will not succeed in covering the full costs of the cases and will need to allocate general revenues for this purpose."
Invalidation of Etobicoke-Centre Election Appealed
On May 18, Ontario Superior Court Justice J. Lederer overturned the 2011 Etobicoke-Centre election in which Conservative candidate Ted Opitz defeated Liberal incumbent Borys Wrezesnewskyj by 26 votes. On May 28, MP Opitz appealed the ruling to the Supreme Court. The appeal is automatically granted and is supposed to be heard expeditiously.
In a statement explaining his decision to appeal, Opitz says, "This is the first time that a case involving the particular provision of the Election Act has been heard, and it is important that it be given the fullest consideration because of its significant impact on our democratic system." He states: "Fifty-two thousand people in Etobicoke Centre followed the rules and cast their ballots. Their democratic choice has been called into question by the decision relating to 0.15% of those ballots."
In truth, the court disqualified 4.04 per cent of the ballots it was asked to review because the litigants agreed that only ten out of the riding's 236 polls would be considered, representing 1,957 of the total 52,794 ballots cast. The court reviewed 181 instances of voter registration and identification irregularities. Judge Lederer ruled that in 79 instances, the irregularities were sufficient to invalidate the ballots. If the same proportion of disqualified votes existed in all the polls, over 2,100 votes would have to be thrown out.
During the five-day hearing, Justice Lederer reviewed voter registration and identity irregularities and considered arguments about the type of irregularities that should or should not be grounds to invalidate a ballot. Opitz's lawyer essentially argued that all irregularities should be treated as clerical errors. Doing otherwise, he argued would be to disenfranchise the voter who is not responsible for the error. Wrezesnewskyj's lawyer argued that only certain errors should be treated as mere errors without consequence, such as a date missing on a document that could only have been used on polling day.
The court did not examine actual ballots. The records viewed by Justice Lederer included the register of voters, poll books, registration certificates and the summary sheet of ballot accounting. Taken as a whole, these documents provide the record of what happened on polling day. They indicate who voted, who registered on polling day, who was vouched for if they lacked proof of identity and who had to swear an oath if their eligibility was challenged by a scrutineer. Names of electors who vouch for a person are also recorded. Forms are proscribed. For instance, voters who are not on the National Register of Voters must fill out and sign a registration certificate with their address. An election official must sign the form and indicate how the individual proved their identity. The names of electors who register in this manner is recorded in the poll book and the name checked off to indicate they cast a ballot. If an elector cannot provide proper identification and is vouched for, both the name of the elector and the voucher are recorded in the poll book.
Judge Lederer summarized his criteria and approach to determining the validity of votes as follows:
"... [T]he court walks a thin line in search of a delicate balance. On the one hand, people who are qualified to do so should be allowed to vote and have their votes count. True clerical errors, such as recording the number of ballots cast in the place reserved for the number who were vouched for, do not matter. Some oversights, such as failure to check off the means by which a voter identified himself or herself, can be accepted, when considered in context of the overall requirements to register. There are irregularities, such as voting in the wrong polling division which, in the absence of any suggestion of double voting, should not impact the result. These should not cause a qualified voter to be disenfranchised.
"On the other hand, there are requirements of the process which are fundamental. We need to be assured that those who vote are qualified to do so. We need to be confident that those who receive a ballot have been identified as persons who are on the official list or who have registered. If we give up these foundations of our electoral system, we are risking a loss of confidence in our elections and in our government.
"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 registration certificates, in the absence of 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."
In this vein, if an election official did not sign a registration certificate but the elector did, Justice Lederer did not treat the error as one that impugned the validity of the elector's vote. However, in cases where only the election official signed the form, he declared the irregularity sufficient to question the validity of the vote. Similarly, Justice Lederer showed leniency towards vouching irregularities. For example, the law forbids an individual to vouch for more than one elector. Wrezesnewskyj's lawyer argued that at one polling station, where two individuals each vouched for two voters, four votes should be invalidated. Justice Lederer only invalidated two of them.
Of the 79 votes invalidated by Justice Lederer, 52 were related to Registration Certificate irregularities; in 41 cases the certificates were completely missing. The remaining 27 invalidated votes were the result of irregularities in the vouching process.
In his application, Wrezesnewskyj alleged not only irregularities in voter registration, but also partisan disruption of voting and suspicious voter registration allegedly coordinated by Conservative operatives. For instance, a sworn affidavit filed by the Deputy Returning Officer at a polling station in a high rise apartment building states: "At the end of the night in the last hour ... there was a sudden burst of activity with voters not on the voter's list coming to the polling station. ... Curiously, all of them knew the Conservative scrutineer. When several still did not have proper identification, they had daughters, granddaughters and such vouch for them, as permitted by election rules. I happened to pass one group (later)... and they were arranging to take their relatives ‘home.' Since they had just vouched for three of the older people as being co-resident with them, I began to doubt their claims..."
However, Wrezesnewskyj decided to limit the issues before the court to "irregularities" so that the court's deliberations could be expedited. According to his lawyer, Gavin Tighe, the decision to do so was based on "legal practicalities." In an interview with TML Tighe explained that it would take several years for the more complex issues involved in proving "fraud" to be heard. In a system with a four-year election cycle, he stated, the case would probably still be going on by the time the next election is called. Wrezesnewskyj maintains his allegations of fraud and corruption and is calling for a public inquiry.
Chief Electoral Officer Marc Mayrand has said that Elections Canada will readjust its plans based on "what transpired in Etobicoke-Centre." At a meeting of the Standing Committee on Procedure and House Affairs on May 29, he said that Elections Canada will "place a major priority on strengthening measures aiming to improve compliance with the procedures and standards applicable on voting day." Mayrand also answered questions about the costs incurred by Wrezesnewskyj -- over $250,000 -- to challenge the election result. Acknowledging that most candidates couldn't afford such legal costs, he suggested that the Supreme Court may address the issue of costs in its appeal ruling. "Otherwise," he said, "we'll need changes to the legislation," implying that the matter would be addressed in his recommendations to Parliament on the administration of elections.
For Your Information
Privacy Commissioner Releases Study on Political Parties and Privacy Protection
On March 28, 2012, the Office of the Privacy Commissioner of Canada released a study entitled Canadian Federal Political Parties and Personal Privacy Protection: A Comparative Analysis. The report examines how political parties collect information and the danger this poses to privacy rights.
The report places the issue within the context of the
crisis of the party system, arguing that "partisan de-alignment" has
made data collection on electors increasingly important for political
parties. "Partisan de-alignment" refers to the waning ability of
certain political parties to carry out the role they are supposed to
play in the electoral and political process, such as formulating policy
and politically mobilizing the people. It is evidenced by declining
voter turn-out and party membership. The study notes that figures on
party membership in Canada show that less than one to two per cent of
Canadians belong to political parties, placing it at "the bottom of the
list of Western democracies." The MLPC's inquiry into the matter puts
this figure even lower.
Canada's first-past-the-post electoral system is also cited as a reason why some political parties need to collect data because "small swings in electoral support can translate into a disproportionate accumulation of seats." This has led these parties "to believe they need ever more precise information on voter behaviour and intentions, so that they might target more precisely defined segments of an electorate in key competitive ridings."
Finally, the study suggests that with the loss of the $2 per vote subsidy that the Harper Conservatives will phase out by April 1, 2014, political fund-raising has become more important and parties are populating their databases with as much information as possible to better solicit funds.
Political Parties Exempt from Privacy Laws
The study points out that while there is growing concern about privacy in an era of increased state surveillance through biometric data collection, and tracking of emails, social media and other avenues, political parties have sheltered themselves from regulations on the use and collection of private personal information. In the United States, while laws protect citizens from privacy violation in sectors such as health, banking and consumer credit, the political parties have used the constitution's First Amendment to give themselves latitude to "collect, process and disseminate vast qualities of personal data on voters, candidates and donors." The study cites U.S. "voter intelligence" as a huge and growing private business.
In Canada, political parties are not subject to the privacy laws that govern commercial or non-profit organizations such as the Canadian Privacy Act or the Personal Information Protection and Electronics Documents Act ( PIPEDA). They are also exempt from the Canadian Radio and Telecommunication Commission's "Do-Not-Call" list. The study concludes that regulations are required, but they must not impede the ability of parties to promote "widespread participation in our democratic institutions."
Canadian Political Parties and Their Databases
According to the study, all the parties in Parliament have databases with personal information on their members, supporters, staff, volunteers and donors and these databases are guarded with secrecy due to the competitive nature of electoral politics. The National Register of Electors provides the "basement start point" for building more complete databases on voters' attitudes, affiliations and intentions." They identify the Conservative Party of Canada's Constituent Information Management System (CIMS) -- as the first centralized voter management system in Canada, put into place in 2004. The Liberal Party has the "Liberalist" modeled under the U.S. Democratic Party's Voter Activation Network which brought Barrack Obama his victory. The NDP has its own custom made system called "NDP Vote."
Political parties can populate their databases from a wide range of sources: letters to editors in newspapers, telephone polling, door-to-door canvassing, donor databases, and the observations and records of party volunteers. Other sources of information include social media, Statistics Canada data, and "geo-demographic databases" from marketing companies.
Right to Privacy
The study concludes that because of a lack of
regulations concerning these data-management systems,
there is a significant risk to the personal privacy rights of
individuals. A number of examples are given which highlight the
problem. They cite the infamous example of Rosh Hashanah cards being
sent from Prime Minister Harper's office to supporters with "Jewish
sounding names" in October 2007. This caused a great deal of alarm as
people who received those cards questioned how they were identified and
targeted. A number of the recipients complained to the Privacy
Commissioner about this breach of privacy in terms of religious belief.
Since data is also gathered from contacts electors have with their MPs, the study raises the potential dangers of this practice. Aside from a possible "chilling effect on voters' willingness to contact their elected representatives," the study concludes that "the potential for differential treatment based on political support is a serious risk that could undermine the integrity and fairness of our representative system."
With regard to the "robocalling" incidents in the federal election in May 2011, the study notes that "these incidents have shed light upon the previously opaque internal practices of political parties." It notes that voters are now aware "that their information is disclosed to telemarketing organizations, some of whom may reside outside Canada." "The online and offline commentary on these controversies have been extensive, and demonstrate a high level of interest and engagement in the broad issues about Canadian electoral processes. Not far beneath the surface, however, lay a number of unanswered privacy-related questions."
The authors of Canadian Federal Political Parties
and Personal Privacy Protection: A Comparative Analysis
conclude that a national conversation is required about the need for
privacy legislation to protect the electorate and make the political
parties accountable.
To read the report in its entirety, click here.
Documents on Voter Suppression Legal Challenge
- Affidavit
of
Annette
Desgagné
- Affidavit
of
Robert
Penner
- Ekos
Study on Voter Suppression
- Conservative
Motion
to
Dismiss
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Website: www.cpcml.ca
Email: editor@cpcml.ca