Election Post-Mortem

I read with interest the Post article about municipal candidates filing complaints against the CBRM’s returning officer with the provincial Ombudsman, although the first thing that occurred to me was that a call to declare an election “null and void” would probably have more weight coming from a mayoral candidate who’s received more than 0.8% of the vote.

But it’s Kevin MacEachern, he of the 0.8% vote share, and Jeff McNeil, who took 7% of the vote to finish fifth in District 11, who have taken their complaints to the Ombudsman.

And it was MacEachern who told the Post he’d “like to see the election deemed null and void,” which sent me to the Municipal Elections Act where I found a laundry list of irregularities that can occur without an election being declared invalid if “it appears to the judge that the election was conducted in accordance with the principles of this Act or a by-law made pursuant to this Act and that the irregularity, failure, non-compliance or mistake did not affect the result of the election.”

Clause 164 NS Municipal Elections Act

So would any of the irregularities alleged by the candidates have changed the outcome of the election?

McNeil’s complaints are largely about the returning officer failing to communicate with candidates during the campaign which, if true, would be annoying for the candidates but probably not outcome-changing for the election. I do think candidates (and voters) should have been informed of the existence of the Voter Help Kiosk in Eskasoni before it began operations, but I don’t think you can argue that would have changed the outcome of the elections, given the fear was the kiosk would give an unfair advantage to Esmond “Blue” Marshall, and Marshall lost (and not by a hair).

McNeil also complained about the lack of a mechanism for a recount, which I agree is problematic but it is due to the system of voting adopted by council. There’s nothing the returning officer could have done about it. (Seriously, would you want the returning officer to ignore council’s decision to hold an all-electronic vote and unilaterally switch to paper ballots mid-election?)

The problem of voters receiving more than one PIN does need to be addressed if we’re going to continue voting electronically, which I suspect we are, although I stand by my earlier point on this subject, which was that people casting more than one vote are less of a concern than people — 37.4% of qualified voters during this election — who cast no vote at all.

Basically, I think this is a question of ensuring we have a better voters’ list. I’m not sure how this is to be done, short of enumerating municipal voters every four years, which I presume is too rich an undertaking for the CBRM’s blood. Maybe it’s just a matter of hiring people to go over the list carefully before an election. Or maybe it’s a problem that will be solved if electronic voting is permitted at the provincial level and Elections Nova Scotia, which produces the list we use in municipal elections, gets more wound up about its accuracy because it’s being used to send not voter information but PINs.

 

Voting in prison

There was another concern cited in the Post article that puzzled me, at first. Donald Campbell, who ran unsuccessfully in District 12, raised the issue of inmates at the Cape Breton Correctional Facility:

Campbell said [Returning Officer Deborah] Campbell-Ryan kept putting it off until the last minute and then permission was given but he was told the inmates had to vote according to their last home address.

“That is a farce because any permanent mail issued to them while at 1356 Gardiner Road – the correctional centre — would be deemed their address, which would be District 12.”

He said it was agreed inmates would vote District 12 but it was left into limbo until two days before the election when it was too late to get the inmates’ information and PIN numbers.

I was puzzled because the Municipal Elections Act prohibits anyone “serving a sentence in a penal or reform institution” from voting in municipal elections. El Jones wrote about this in some detail for the Halifax Examiner back in June.

Disqualified persons clause, NS Municipal Elections Act

The ban is an anomaly — a 2002 Supreme Court decision upheld prisoners’ right to vote in federal and provincial elections and a lawyer Jones spoke with says municipal elections should obviously be included because municipalities derive all their powers from the provinces. But to date, the province has not amended the Municipal Elections Act to remove this ban and so, qualified electors serving sentences can vote provincially and federally but not municipally.

But there’s a catch — according to the most recent (2017-18) figures from Corrections Nova Scotia, the average daily count shows 62% of people held in provincial custody are on remand, meaning they have not been convicted of a crime:

Campbell-Ryan told me that the legal interpretation of Sec. 15(c) of the Act is that “people who are on remand and are not yet convicted/serving a sentence would be entitled to vote.” I checked with Donald Campbell who confirmed that it was people on remand he was concerned about (he also told me that he didn’t bother lodging an official complaint, having decided to focus on non-political activities.)

Before we go any further, I’d like to note how Elections Nova Scotia facilitates voting in correctional facilities:

Immediately following an election call, Elections Nova Scotia provides liaison officers at each provincial and federal correctional facility with brochures and write-in ballot application forms to distribute to eligible electors held in the facility.

Elections Nova Scotia receives and reviews the application forms to determine whether the elector is qualified to vote and to confirm the elector’s electoral district.  If approval criteria are met, Elections Nova Scotia will issue a write-in ballot kit for each approved elector and arrange expedient delivery to the correctional facility liaison officer in the correctional facility where the elector resides.

The elector will vote using the write-in ballot and the liaison officer will return the ballot to Elections Nova Scotia.

The municipality, on the other hand, goes to no special effort to ensure people on remand at the Cape Breton Correctional Facility can vote. Here’s what Campbell-Ryan told me:

Those in a penal or reform institution but not serving a sentence are allowed to vote, which simply means they are not disqualified from voting. There is no requirement to establish a poll at a correctional facility.

Cape Breton Correctional Facility

Cape Breton Correctional Facility

Okay, I have to interject here, the CBRM’s alternative voting by-law requires the returning officer to establish precisely one poll, but allows the returning officer to establish as many polls as she chooses, which is why there were polls at the returning office, at Eskasoni, at Centre 200, at the Miners Forum, at the North Sydney Fire Fighters Club and at several nursing homes across the municipality. And if the rationale for setting up a poll in a nursing home is that residents have difficulty traveling to exterior polls, then surely that goes double for people who literally are forbidden from leaving their place of residence?

Those persons in a penal or reform institution but not serving a sentence were on the voters list, a PIN would have been sent to their residence and they would be required to vote for the Councillor of the district of their residence. If those persons were not on the list, they would be responsible like every other resident to contact the office to have their names added to the list. The returning office does not enquire as to what residents of the CBRM may be on remand in the local penal facility or any other penal or reform institution outside of the CBRM. The obligation remains on the voter to obtain the PIN form his or her last known mailing address, notify the Returning Office of a change of address and/or that they did not receive a PIN.

Donald Campbell told me that people on remand at the Correctional Facility would not have access to a phone or computer/internet and Krista Higdon of Municipal Affairs seemed to confirm this, telling me that:

People on remand in prisons are permitted to vote in municipal elections. Correctional Services arranges for those on remand to get their personal PIN from their home/family and an opportunity to vote by telephone is provided.

I reached out to the other NS municipalities that are home to provincial jails to ask how they handled voting for people on remand. As of press time, I’d heard only from David Sollows, the returning officer in Yarmouth (where the Southwest Nova Correctional Facility is located), who told me there was nobody on remand at the facility during the election period, but:

If there had been people on remand at the Southwest Nova Correctional Facility who expressed a desire to vote, their place of residence would determine which municipal election they would be entitled to vote in. If they were a resident in the Town of Yarmouth and a voter letter had been sent to their place of residence, once a PIN had been confirmed, voting could have been arranged in cooperation with correctional services staff to be done by mobile poll using telephone voting or by friend voting with completion of the appropriate form. I will say that electronic voting would make this easier than use of paper ballots. It would be our goal to find a way to enable anyone who is eligible to vote to cast their ballot.

So the question is: did anyone vote at the Cape Breton Correctional Facility during this past election? I tried to ask management at the facility but was directed to Correctional Services. Justice Department spokesperson Heather Fairbairn told me by email that they had:

Yes, the Cape Breton Correctional Facility, and all adult provincial correctional facilities, provided individuals on remand or in pre-trial custody with voting instructions for the municipal elections and those who wished to do so were given the opportunity to vote by phone.

 

Pro-social behavior

I could end this here, but I feel the need to add that OF COURSE the people at the Cape Breton Correctional Facility should be allowed to vote — and not just those on remand. There’s no logic to a system that recognizes prisoners’ right to vote in provincial and federal elections but draws the line at municipal contests.

Darlene MacEachern

Darlene MacEachern

I asked Darlene MacEachern, executive director of the Elizabeth Fry Society of Cape Breton, if she had any thoughts on the question of prisoners voting in municipal elections (which, in retrospect, is like asking an animal rights activist how they feel about Halloween costumes for cats, municipal voting being such a small part of a much bigger issue) but she was kind enough to overlook the narrowness of the question and respond:

Our Society believes you go to prison as punishment not for punishment, so anything that further restricts your freedom must have rules outlining this. This translates to everything from segregation to voting in an election.

According to the Nova Scotia Adult Correctional Facilities’ Core Business statement, the business of provincial jails is to address criminogenic factors to assist with the successful, reintegration of people into the community. That to me means encouraging and demonstrating pro-social behaviors that lead to pro-social citizens. What could be more pro-social [than] voting in any election. I have arranged for federal election candidates to go into Nova Institution to debate their platforms and answer questions from the women. This lead to a 100% voter turnout at the Prison.

It is important to note that imprisoned women are some of our most marginalized, racialized, victimized and institutionalized citizens who could and should have an opportunity to be informed and to inform, as well as, to vote.

MacEachern went even further, though, making it clear that the Elizabeth Fry Society believes in the abolition of prisons, and sees issues around voting as further evidence that “they don’t do what they say they do.”

 

Uniformity

Elections Nova Scotia logoAnd there’s one more point I’d like to raise, while I have you here: what if we let Elections Nova Scotia run municipal elections?

Back in June 2020, when Municipal Affairs Minister Chuck Porter declared that municipal elections would go ahead despite the COVID concerns of the Nova Scotia Federation of Municipalities (NSFM) , the non-profit Springtide Coalition withdrew from a contract to encourage voter and candidate participation for reasons then-executive director Mark Coffin outlined in an open letter to Porter. This was one of Springtide’s concerns:

The challenges of administering an election during a pandemic will almost certainly be compounded by pre-existing vulnerabilities and archaisms fixed in law by the Municipal Elections Act (MEA) and the ‘leave it to the municipalities’ approach…In brief, the standards of the Act are far lower than those demanded of provincial and federal election administrators. The Act leaves too much discretion to municipalities on how to administer and oversee elections when there isn’t sufficient scale in smaller municipalities to continually monitor and improve standards as the world changes. The Act requires almost no public reporting by returning officers or campaigns.

When it comes to voting, I have to say, I’m a fan of uniformity. I don’t know that it makes sense to have 49 different systems, as we do for municipal elections in Nova Scotia, where 26 municipalities (including CBRM) opted for electronic-only voting this time out, seven regions (including Richmond County) opted for paper-only elections and 13 (including Halifax Regional Municipality) opted for a hybrid of electronic and in-person voting. (That only adds up to 46 because Lockeport and Middleton councils and mayors were returned by acclamation and Windsor-West Hants voters cast ballots when the communities merged back in May.)

Writing recently for the Brennon Center for Justice, Michael Li lauded the uniformity in Canadian federal elections:

Every Canadian voter, for example, can vote early on the same nationwide advance voting days, with polling places open for identical hours. Rules on what voters need to bring to the polls — or how to vote by mail — also are the same from Nova Scotia to British Columbia. This uniformity not only creates fairness, but reduces the potential for confusion and makes it easier to educate voters.

Li contrasts the Canadian system to the American system “where every state sets its own, often widely varying election rules.” I think a similar argument can be made for uniformity across Nova Scotian municipalities. Take voter education, for example, uniform rules would allow an organization like NSFM to produce a voting guide that could be used across the province. It would also establish clear guidelines for things like voting in prisons.

But chiefly, it would put the running of the elections into the hands of an organization whose sole purpose is running elections.

That makes sense to me, but if you have objections to raise, please, drop me a line. Maybe we could vote on it.