Absentee and write-in ballots: constitutional and policy considerations.

• Author: Hawkins, Robert E.

The most reported statistic on election night, apart from the vote count, is the percentage of eligible citizens who cast a ballot. Voter turnout is frequently cited as a measure of the health of our democracy. In recent years policy makers and Chief Electoral Officers have dedicated themselves to creating multiple 'voting opportunities' in order to make voting more accessible to the electorate. Since 2007, Newfoundland and Labrador has allowed an elector to vote up to four weeks before an election is called and to do so by writing into a blank space, on an absentee ballot, his or her party of choice. This practice of pre-writ voting, and voting-by-party, is currently the subject of a constitutional challenge before the Newfoundland and Labrador Supreme Court. The ultimate decision could have an impact for election law in all Canadian jurisdictions. This article looks at the situation across Canada as well as the specifics of the Newfoundland case.

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The unprecedented number of voting opportunities that now exist in Canadian federal and provincial jurisdictions include regular election day polls, advance polls, special polls for those in institutions such as prisons or care homes, mobile polls transported to the homebound, and polls in returning offices which, in Nova Scotia, are now called 'returning office continuous polls' because they are open whenever the returning office is open as soon as possible after the election is called. If a voter is unable, or in some cases unwilling, to vote at an advance poll, or at assigned election day poll in his or her riding, some jurisdictions permit the voter to vote in-person at a different poll in the riding, or at the returning office in another riding, or by mail. (1)

These alternate voting opportunities create timing and logistical problems for the production and distribution of ballots. If nominations have not yet closed, ballots cannot be printed with the names of candidates. If a voter is voting outside of his or her home riding, the voter must still receive a ballot that enables him or her to vote in his or her home riding. It would be difficult for all returning offices in a province to carry, and secure, ballots printed with the names of the candidates running for each of the provincial ridings. The solution most often adopted is a ballot sometimes called a 'special' ballot, sometimes an 'absentee' ballot, and sometimes a 'mail-in' ballot. These are ballots that enable a voter to fill in a blank space indicating his or her preference for the election in his or her home riding. Some jurisdictions require the voter to fill in the name of a candidate, others the name of a candidate or the name of a registered political party, and still others allow the voter to fill in both the name of the candidate and the candidate's party if the voter wishes.

The interesting case is Newfoundland where legislative changes in 2007 created an option to cast a special ballot up to four weeks before the election writ was dropped by writing in the name of a candidate, or of a party, or both. In the October 2007 election, 3.8% of ballots cast by Newfoundland and Labrador voters were of the mail-in variety, up 9% from the 2003 election. The Chief Electoral Officer described the effort that Elections Newfoundland and Labrador put into promoting the special ballot option in 2007: "A widespread special ballot campaign was launched to promote voting by special ballot and included householders, radio, newspaper and transit ads as well as interviews by local radio and television stations with the Chief Electoral Officer." (2) Still, the Chief Electoral Officer seemed disappointed with the take-up:

The legislation which allowed special ballot voting to begin four weeks prior to the issue of the writ did not result in a large increase in special ballot applications. When voters were later questioned as to why they didn't apply earlier, the general response was that they didn't know you could apply before the writ was issued or they didn't know who the candidate for their electoral district was before nominations officially closed. Despite what we thought was an extensive advertising campaign, it was not widely known to the public that either the candidate's name, political party or both are acceptable when marking a special ballot. (3) Special Ballots in Federal and Provincial Voting

Provincial and federal jurisdictions all make use of special, absentee or mail-in, ballots. (4) The following paragraphs summarize the provisions of the electoral law in each case.

Canada: Any person qualified to vote in a Canadian general election who cannot, or who does not wish to, vote at the polls, may apply to any returning officer, or to Elections Canada, no later than the Tuesday before general polling day, for a special ballot. Qualified voters residing outside of the country are eligible to receive a special ballot provided that they have been away for less than five consecutive years and provided that they intend to resume residence in Canada. Canadian forces electors, and government employees working outside of the country, or for certain international organizations, are exempt from these time limitations.

To cast a vote, the blank space on the special ballot must be filled in with the name of a candidate running in the voter's home tiding. Close of nominations occurs 19 days before election day which is at least 17 days after the writ is dropped. The special voting rules administrator must distribute lists of candidates to the persons and places the administrator considers appropriate "without delay after a list of candidates is established ..." Election Canada also advises absentee voters that they must obtain the names of candidates in their electoral district: "These names can be found at www.elections.ca, or obtained by calling the Elections Canada Enquiries Unit, or through Canadian embassies, diplomatic missions and consular posts after the candidates have been confirmed, on the 19th day before polling day."

Completed special ballots may be returned in person or by mail. A special ballot voter casting a ballot in his or her home riding, must ensure that the ballot is received at the riding returning office by close of polls on election day. Special ballot voters voting outside of their home riding must return their votes to Elections Canada, in Ottawa, by 6:00 p.m. on election day.

Manitoba: A voter in a Manitoba provincial election is eligible to receive an absentee ballot providing that he or she signs a declaration affirming that he or she, "expects to be absent from his or her electoral division on election day and during advance voting" and providing that he or she intends to be away for no more than six months (with some exceptions such as for students and members of the Forces). In order that the ballot can be filled in with a candidate's name, the returning officer provides the absentee voter, "at the close of nominations, a list of the candidates showing the registered political party, if any, that has endorsed the candidate." This is possible because nominations close 21 days before the election date in the case of fixed elections, 15 in the case of any other elections. Completed absentee ballots must be received at the returning office by close of polls on election day.

Write-in ballots are also used for in-person voting at institutions such as care homes and prisons and when voters are voting at advance polls outside of their home constituencies. In these cases, a voter is given, together with the write-in ballot, "a list of the candidates in the voter's electoral division that also indicates the registered political party, if any, that has endorsed a candidate; ..." (5)

Ontario: Any voter in Ontario can cast a write-in ballot in person at, or mail a write-in ballot to, the returning office in his or her riding any time between the day the writ is dropped and the closing of polls on election day. Nominations close the second Thursday after the election writ; the general election takes place three weeks later. The Chief Electoral Officer will provide each district returning officer with a list of candidates as soon as possible after the close of nominations. Write-in ballots, indicating the preferred candidate, must be received at the returning office by the close of polls on election day.

An Ontario voter who is away from the province and who wishes to cast an absentee ballot must apply to be placed on the Register of Absentee Electors. He or she must give the date on which he or she left Ontario and, "the date, if known, the elector intends to resume residence in Ontario." A voter can only have been temporarily absent from Ontario for less than two years. This time limit does not apply to members of the Forces or to certain other categories. Once approved, the absentee voter will receive a Special Ballot Kit containing a special (write-in) ballot and a list of candidates for the elector's district, "if it is available". Such lists are generally available in time to permit filling in the preferred candidate's name on the write-in ballot. (6)

Quebec: Voters absent from Quebec have up until the 19th day before a provincial election to submit an application for a postal ballot. To be eligible, the elector must affirm that he or she is a qualified voter, that he or she had been a provincial resident for at least 12 months before leaving Quebec, that he or she has been away for two years or less (with some exceptions), and that he or she intends to return. If the voter's application is approved, material, including a write-in ballot, is sent out. A second package is sent out 14 days before the election, and two days...