Accepting imperfection

By Aaron Wherry - Friday, October 26, 2012 at 11:00 AM - 0 Comments

Emmett Macfarlane considers yesterday’s Supreme Court ruling on Etobicoke Centre.

The majority decision has a firm grasp on the practical realities at place. The judges write that “our electoral system must balance several interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost. But the central value is the Charter-protected right to vote.” [para. 44] Further, they note that the “current system of election administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system.”

This may be cold comfort to those who worry about fraud or simple errors resulting in ineligible votes. Some may not even care that there was no evidence of enough truly ineligible ballots to affect the outcome (let alone zero evidence of fraud). But if the cost of procedural safeguards to ensure absolute certainty in this regard is the disenfranchisement of legitimate voters then we may need to live with the reality that no system is perfect. At the very least, as the judges in the majority were correct to conclude, we need to have concrete evidence that results have been adversely affected by potential errors before we start overturning elections.

Adam Goldenberg also praises the decision.

Like Bush v. Gore, Opitz v. Wrzesnewskyj was a split decision. In 2000, five Republican-appointed justices voted to end the Democrats’ last hopes of victory. Thursday, by contrast, two of the four judges who voted to keep a Conservative MP, Opitz, in office were Liberal nominees.

But in Canada, such partisan math does not matter. True, the Etobicoke Centre dispute was about politics; an election was won by 26 votes, a losing candidate challenged the result, a lower court overturned it, and the winner appealed to the country’s higest court. But the Supreme Court’s decision turned on its mandate to set precedent, not settle scores. And, unlike their American brethren, the Canadian court got it right.

Supreme Court: the emerging don’t-sweat-the-fine-print bloc

By Paul Wells - Thursday, October 25, 2012 at 11:20 AM - 0 Comments

There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things.

First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.

Today there was division, and it didn’t follow partisan lines neatly. (I’ll cut to the chase: I think it’s simplistic to presume a justice appointed by a given PM will consistently rule in ways that please that PM. This has simply never been the case in Canada, to the dismay of a succession of prime ministers.)

Today’s majority included Michael Moldaver and Marshall Rothstein, appointed by Harper, and Marie Deschamps and Rosalie Abella, appointed by Jean Chrétien and Paul Martin respectively [I got that wrong the first time around — pw]. The dissent was written by Chief Justice Beverley McLachlin, appointed to the court by Brian Mulroney and elevated to Chief Justice by Chrétien, with Chrétien appointees Louis Lebel and Morris Fish concurring.

The “swing” votes here were Abella’s and Deschamps’. And this isn’t the first time that has happened. Continue…

Supreme Court of Canada rules in favour of Conservative MP Ted Opitz

By The Canadian Press - Thursday, October 25, 2012 at 9:51 AM - 0 Comments

OTTAWA – A divided Supreme Court of Canada ruled Thursday that Conservative MP Ted Opitz legitimately won his seat in the Toronto riding of Etobicoke Centre in the May 2011 federal election.

By a slim 4-3 margin, the high court granted Opitz’s appeal and affirmed his razor-thin, 26-vote victory in an election that saw more than 52,000 ballots cast and unleashed a heated exchange of political vitriol.

Opitz was appealing an Ontario Superior Court ruling that set aside his victory over Liberal incumbent Borys Wrzesnewskyj because of procedural irregularities with 79 ballots.

In a historic decision that will guide future elections, the Supreme Court overturned the lower court ruling because it said 59 of those rejected votes should have been allowed to stand.

The court applied what it called a “magic number test” to make its ruling, which in this case means Opitz essentially won his seat by a mere half dozen votes.

However, three justices -— led by Chief Justice Beverley McLachlin — disagreed, saying Ontario Superior Court Justice Thomas Lederer made “no palpable and overriding error” when he initially rejected 79 votes and set aside Opitz’s victory.

The decision marks the first time the Supreme Court has ruled on the validity of an election result in a federal riding in the modern era under the current Canada Elections Act.

There was no evidence that either of the candidates engaged in any level of fraud or corruption. It was the conduct of Elections Canada that came under close scrutiny.

Overall, the court concluded that entitlement to vote cannot be taken away simply because of a procedural error by election officials.

The court said that an irregularity that affects the result of an election simply means that “someone not entitled to vote, voted.”

In an era when low voter turnouts make for more frequent election-night nail biters, the justices laid out the ground rules on when the courts ought to involve themselves in reviewing tight election races, and when they should not.

The court found that Elections Canada officials may have made some administrative errors when they registered new voters on election day, but concluded those errors did not ultimately have an impact on the final result.

“In exercising this discretion, if a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election,” Justices Marshall Rothstein and Michael Moldaver wrote for the majority. “For the purposes of this application, the ‘magic number’ test will be used to make that determination.”

In this case, justices concluded that Lederer wrongly set aside at least 59 votes.

“Therefore the magic number test is not met, as the remaining number of votes invalidated (not more than 20) is not equal to or does not exceed the plurality of 26 votes.”

The court ruled that the candidate who seeks to overturn an election result — in this case Wrzesnewskyj — bears the burden of proving that irregularities occurred.

In this case, the majority ruled that Lederer made errors in determining who bore the burden of proof.

However, the minority found that Lederer had applied the correct legal test and that his original decision should stand.

“While various explanations for each of these problems were advanced, the application judge concluded, on a balance of probabilities, that the explanation for this catalogue of deficiencies was that the necessary declarations were never made,” McLachlin wrote for the minority.

“The application judge made no palpable and overriding error in drawing this factual inference on the evidence before him.”

The majority ruling also addresses a number of key policy issues and urges vigilance on Elections Canada.

“In recognizing that mistakes are inevitable, this court does not condone any relaxation of training and procedures,” it said. “The commissioner of Canada Elections appointed by the CEO has an obligation to ensure, as far as reasonably possible, that procedures are followed. …

“Failure to live up to this mandate would shake the public’s confidence in the election system as a whole and render it vulnerable to abuse and manipulation.”

The court said there are serious consequences to overturning an election. “It should be remembered that annulling an election would disenfranchise not only those persons whose votes were disqualified, but every elector who voted in the riding.”

It said the current system “is not designed to achieve perfection” but should come close to enfranchising as many voters as possible.

The full ruling is here.

Supreme Court rules no by-election in Etobicoke Centre

By Aaron Wherry - Thursday, October 25, 2012 at 9:48 AM - 0 Comments

The Supreme Court has ruled in favour of Conservative MP Ted Opitz and there will be no by-election in Etobicoke Centre.

The full ruling is here. The Canadian Press explanation is here.

Update 10:12am. A statement from Mr. Opitz.

I thank the court for its carefully reasoned decision. It is important to respect the will of the voters in Etobicoke Centre which was demonstrated by the result of the election. I agree with the court’s decision where it identified the importance of enfranchising the electors of Etobicoke Centre. As the court decision confirmed, a fair election took place, the result was clear, was then confirmed on a recount and the result has now been endorsed by the Supreme Court of Canada. 

Fifty two thousand people in Etobicoke Centre followed the rules, cast their ballots and today had their democratic decision upheld. I look forward to continuing my work as the MP for Etobicoke Centre, as we continue to implement Prime Minister Harper’s economic action plan to create and protect jobs.

The Prime Minister’s Office is pleased.

Update 10:32m. A statement from interim Liberal leader Bob Rae.

While we are disappointed in today’s split decision to overturn the Ontario Superior Court ruling, we accept it as the judgement of the majority of the Court. No doubt there will be a need to review both the opinions of the majority and the minority, and assess what further changes are needed to our election laws.

In addition to the split ruling today, there still exists a disturbing trend of irregularities and reports of election fraud stemming from the 2011 general election. We cannot forget that Canadians across the country were deprived of their right to vote through a coordinated attack on our democracy. Though Mr. Wrzesnewskyj’s case did not deal directly with these matters, it cannot be divorced from the allegations that have called into question the strength of our democracy. There is still much work to be done and many questions to be answered in order to restore our confidence in Canada’s electoral institutions.

I would like to thank Mr. Wrzesnewskyj for his tireless efforts in pursuing this cause. His dedication to upholding the integrity of Canada’s electoral system and the faith we have in Canada’s democracy is nothing short of remarkable. Regardless of the capacity, I know Mr. Wrzesnewskyj will continue to serve his community and the people of Etobicoke Centre.

A ruling on Etobicoke Centre is at hand

By Aaron Wherry - Friday, October 19, 2012 at 3:15 PM - 0 Comments

A note from the Supreme Court advises that a ruling in the case of Ted Opitz et al. v. Borys Wrzesnewskyj et al. will be delivered at 9:45am on Thursday.

See previous coverage of Etobicoke Centre here.

In Etobicoke Centre, a new election is not enough

By Adam Goldenberg - Friday, July 20, 2012 at 12:38 PM - 0 Comments

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?”

Continue…

Every vote counts

By Aaron Wherry - Thursday, July 19, 2012 at 1:00 PM - 0 Comments

Adam Goldenberg doesn’t like Elizabeth May’s suggestion to the Green and New Democrat candidates in Etobicoke Centre.

If the election results were tainted, and the Supreme Court tosses out the result, then every one of those votes will be voided … As I argued here last week, the result of an election is not the same as its outcome; the result is the final vote tally, the outcome is the identity of the winner. 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?

As I noted yesterday, there’s some precedent for parties sitting out a by-election, but I’m not sure there’s any precedent for doing so in these circumstances.

Since 1949, five results have been declared void: Annapolis-Kings in 1949, Yukon in 1957, St. John’s West in 1962, Comox-Alberni in 1968 and York North in 1988. In the case of York North, all the parties that participated in the original vote fielded candidates in the by-election. In Annapolis-Kings and Yukon, only two parties were represented in the first place. In St. John’s West, the NDP was represented in the by-election, despite finishing a distant third in the original vote. The 1968 vote in Comox-Alberni resulted in a nine-vote win for the Liberal over the New Democrat, but the Progressive Conservative still ran in the subsequent by-election—though the Social Credit Party and the Communist Party seem to have sat out after finishing a distant fourth and fifth respectively in the original vote.

Mind you, the official records don’t indicate why the Socreds and Communists declined—and the reason for sitting out would seem important here.

Standing down

By Aaron Wherry - Wednesday, July 18, 2012 at 11:49 AM - 0 Comments

Elizabeth May suggests that, in the event of a by-election in Etobicoke Centre, the Greens and NDP should stand down to allow for a straightforward grudge match between Ted Opitz and Borys Wrzesnewskyj.

Although Ms. May she said would not normally urge her party to stay off a ballot, the situation in Etobicoke Centre is highly unusual. If anyone was unfairly denied a seat in that riding it was Mr. Wrzesnewskyj, she said, and if there is a by-election it should be “a clean vote between Borys and Ted.”

Ms. May has some history in this regard: Stephane Dion agreed in 2007 to not run a candidate in Central Nova in an ill-fated attempt to help Ms. May defeat Peter MacKay.

There is some general notion that parties might not field a candidate when a by-election occurs to provide an opportunity for the new leader of another party to win a seat, but, at least in recent history, it has been inconsistently applied. The Liberals, for instance, didn’t run candidates against Stephen Harper (Calgary Southwest) in 2002 or Joe Clark (Kings-Hants) in 2000 and the Progressive Conservatives didn’t field a candidate against Jean Chretien (Beauséjour) in 1990. But the Liberals did field candidates against Stockwell Day (Okanagan-Coquihalla) in 2000 and Brian Mulroney (Central Nova) in 1983. The NDP fielded candidates in all of those by-elections.

The last time an election result was declared void and a by-election ordered—York North in 1988—the dispute involved a close finish between a Liberal (Maurizio Bevilacqua) and a Progressive Conservative (Michael O’Brien). The NDP fielded a candidate in the by-election and ended up getting ahead of the Progressive Conservatives to finish second.

Astute reader Derek Leebosh notes that in 1942, the Liberals officially stood down in York South when Conservative party leader Arthur Meighen sought a seat, but the CCF candidate (with Liberal assistance) went on to win the by-election. This post from Torontoist explains the situation in lavish detail.

The meaning of Etobicoke Centre

By Aaron Wherry - Thursday, July 12, 2012 at 11:15 AM - 0 Comments

The Toronto Star, Greg Fingas, Omar Alghabra and, quoted below, Adam Goldenberg consider the Supreme Court’s impending decision on Etobicoke Centre.

We elect a Parliament, not a government; we vote for our local MP, not the Prime Minister. Political parties do not “win” elections, successful local candidates do, and the party with the most of them gets the first chance to form the government. In an election, as in Parliament, the individual matters more than the aggregate, the vote tally as much as the winner, and the result no less than the outcome. The same logic—that every vote matters—explains why we choose our leaders in elections in the first place; if efficiency were all-important, we would use opinion polls, instead.

This is a principled argument. Elections Canada offers a practical one. And perhaps, as Mr. Mayrand argues, the perfect should not become the enemy of the good; a simple bureaucratic snafu may not be enough to upend an election, unless the outcome hangs in the balance. But if the Supreme Court accepts his argument, it will be conceding not just that Canada’s electoral system is imperfect, but also that our commitment to our own democracy is more limited than we might have hoped. Canadians should expect only as much democracy as we can afford.

See previously: A day in court

‘A debate about the integrity of the voting system’

By Aaron Wherry - Tuesday, July 10, 2012 at 11:14 PM - 0 Comments

The National’s report tonight on today’s hearing at the Supreme Court.

A day in court

By Aaron Wherry - Tuesday, July 10, 2012 at 4:52 PM - 0 Comments

The CBC, Globe and Canadian Press sum up today’s Etobicoke Centre hearings at the Supreme Court.

This morning’s coverage is here.

Etobicoke Centre goes to the Supreme Court

By Aaron Wherry - Tuesday, July 10, 2012 at 8:00 AM - 0 Comments

The disputed vote in Etobicoke Centre goes to the Supreme Court this morning for a final appeal. The official summary is here. The factums from Ted Opitz, Borys Wrzesnewskyj and Elections Canada are here.

Susan Delacourt says it’s a test of our democratic machinery. Leslie MacKinnon says the stakes are higher for all sides. Postmedia says the chief electoral officers for British Columbia and Alberta are concerned.

Our live coverage will start here around 9am.

8:54am. Greetings from the Supreme Court. The lawyers are seated and the candidates have taken their places in the gallery—Mr. Opitz on the right side, Mr. Wrzesnewskyj on the left. Now waiting for the justices to arrive.

9:00am. All rise. Let’s do this. (Or words to that effect.) Continue…

Etobicoke Centre goes to the Supreme Court

By Aaron Wherry - Monday, May 28, 2012 at 10:14 AM - 0 Comments

A statement from Conservative MP Ted Opitz.

“This is the first time this section of the Elections Act has been considered by a court, and it is  important that it be given the fullest consideration because of its significant impact on our  democratic system. The court made it very clear that there was no wrongdoing by any candidate. 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.

There is an automatic right to appeal the decision directly to the Supreme Court of  Canada. Parliament intended the final decision on such a significant matter of national importance  should be made by the Supreme Court of Canada. I will be appealing the decision to let the Supreme Court of Canada decide. It is in the public interest  that election results be respected and that voters not be disenfranchised.

The legal grounds for the appeal will be argued in court. My focus will continue to be on doing my  job. As I have done for the past year, I will continue working hard on behalf of my constituents in Etobicoke Centre.

See previously: Redo in Etobicoke Centre and The race* for Etobicoke Centre

The race* for Etobicoke Centre

By Aaron Wherry - Tuesday, May 22, 2012 at 9:51 AM - 0 Comments

An early poll gives the Liberals the lead in the contested riding. Alice Funke reviews the voting history and considers the political narratives.

The Conservatives need to figure out which trend is their friend in this case. Is it that they should avail themselves of some of the best election lawyering in the country to appeal the case and try to keep the seat for fear the national polling trends (and even Rob Ford is having some troubles holding onto Ford Nation these days too) could see them underperform in a do-over, as happened in York North. Or should they rely instead on the finding that defeated Liberal incumbents can rarely stage comebacks these days, and try to bank on a better split … For the Liberals, a by-election here would be either their time to shine in an old-school pure two-way Liberal-Conservative contest – the kind they love, and want to recreate in as many other places as possible – or another quantifiable measurement of their reduced status on the federal scene.

*Conservative MP Ted Opitz has this week to decide whether he will appeal the Ontario court’s ruling.

Redo in Etobicoke Centre?

By Aaron Wherry - Friday, May 18, 2012 at 1:34 PM - 0 Comments

An Ontario court has ruled last year’s federal election result in Etobicoke Centre to be null and void.

The result, which saw Conservative Ted Opitz defeat Liberal incumbent Borys Wrzesnewskyj by 26 votes, had been contested on the grounds of irregularities—see CBC coverage here, here and here.

Unless today’s ruling is appealed—it would go directly to the Supreme Court—and subsequently overturned, a by-election will be held.

Update 2:07pm. A statement from Conservative party spokesman Fred DeLorey.

We are disappointed with the decision of the Court today. The judge has found problems with the way that Elections Canada ran the election in this riding. As the judge took care to point out in the decision, Ted Opitz and the Conservative campaign team followed the rules. Fifty two thousand people in Etobicoke Centre followed the rules, cast their ballots and today had their democratic decision thrown into doubt. Ted Opitz will continue working hard on behalf of his constituents.

Update 2:41pm. Mr. DeLorey, on the question of a possible appeal: “We are reviewing the decision.”

Update 2:57pm. Only five times since 1949 has a vote been declared null and void: the last time being in York North in 1988. The House of Commons guide lays out the procedural steps as follows:

The court sends a copy of the decision to the Speaker; the Speaker will also be informed if an appeal has been filed. If no appeal has been filed, the decision is tabled in the House. An appeal to the Supreme Court of Canada must be filed within eight days of the decision being rendered and is heard without delay. The Supreme Court’s decision is transmitted to the Speaker who tables it in the House. If the election is declared null and void, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ for a new election.

Update 3:14pm. A statement from Mr. Opitz.

I am disappointed with the decision of the Court today. The judge has found problems with the way that Elections Canada ran the election in this riding. As the judge took care to point out in the decision, I and my campaign team followed the rules. This is not about me. It is about fifty two thousand people who followed the rules, cast their ballots and today had their democratic decision thrown into doubt. I am proud that the people of Etobicoke Centre elected me to represent them as their Member of Parliament. I will continue working hard on their behalf.”

Update 3:27pm. A statement from interim Liberal leader Bob Rae.

“I was pleased with the Ontario Superior Court’s decision to declare the 2011 election results in Etobicoke Centre null and void. Liberal Member of Parliament Borys Wrzesnewskyj lost his seat by 26 votes and had outlined numerous irregularities that were, in the end, found by Justice Lederer to have undermined the results. It has become clear to many Canadians that our democracy was tested and perhaps undermined during the last election. Reports and allegations of election fraud are widespread and there are many cases still under investigation. This has cast serious doubts on the integrity of our electoral system, but we are confident that a by-election in Etobicoke Centre would help greatly in reaffirming the strength of our electoral system and Canada’s democracy.”

Update 4:40pm. CBC has the text of today’s court decision here.

The curious case of Etobicoke Centre

By Aaron Wherry - Friday, March 2, 2012 at 9:30 AM - 0 Comments

Amid all else, the result in Etobicoke Centre is being contested for a number of reasons.

 Borys Wrzesnewskyj is not alleging the kind of dirty tricks that opposition parties are accusing the Conservatives of employing to suppress the vote in other ridings. Quite the reverse; he’s alleging that too many ineligible voters were allowed to cast ballots in Etobicoke Centre, in some cases more than once.

In a statement of particulars filed Feb. 17 with the Ontario Superior Court of Justice, Wrzesnewskyj argues that 218 voters were improperly allowed to cast ballots in 10 different polling divisions in his riding. He alleges a variety of irregularities, including ballots cast by people who did not live in the riding and the possibility that at least some people voted multiple times.

Two recounts

By Aaron Wherry - Tuesday, May 3, 2011 at 12:12 PM - 4 Comments

There will be two automatic recounts—in Etobicoke Centre where the Conservative candidate beat a Liberal incumbent by 26 votes and in Nipissing-Timiskaming where the Conservative candidate beat a Liberal incumbent by 14 votes.