A Pandemic Federal Election: Democracy Under Conditions of Emergency.

• Author: Pal, Michael
• Position: Canada

1. INTRODUCTION

   While Canada's next fixed date federal election is scheduled by the Canada Elections Act (1) (the Act) for October 2023, (2) one of the consequences of the current minority Parliament elected in 2019 is that a new election could be called at any moment. (3) In April 2020, Elections Canada issued a remarkable statement in anticipation of a federal election in the midst of the COVID-19 pandemic. (4) Canada's non-partisan, independent electoral management body communicated to the public that if an election occurs during the pandemic, it might not be able to administer elections in all ridings due to the ongoing public health emergency. In such circumstances, Elections Canada would certify to the Governor in Council that the writ(s) of election, the legal mechanism for instituting a vote in each of the 338 federal ridings, should be withdrawn. (5) Elections Canada emphasized that it has never taken such action in its history.

   This statement highlighted the difficult decisions facing democracies with upcoming elections in the face of a pandemic caused by a highly transmissible virus. The most direct, negative potential consequence of a pandemic election would be the transmission of COVID-19 among voters or poll workers at a rate that would augment the public health emergency. The policy decisions taken by Parliament and the government are always of great importance, but the choice of elected representatives is especially precipitous during a pandemic given the urgent decisions that must be taken regarding public health and the economy among other issues. The failure to return Members of Parliament for specific ridings, in the scenario outlined by Elections Canada, would also be troubling, particularly if the areas most ravaged by COVID-19 would be the ones unable to elect a representative to the House of Commons. Low turnout, if voters are deterred by health risks from casting ballots, (6) could harm the perceived legitimacy of Parliament and the government emerging from a pandemic election. Legitimacy would also be harmed if the election was carried out, but seen as administered below the expected standard due to the challenges of the pandemic. (7)

   Canada already has some experience of conducting elections with such issues hanging in the air. During the pandemic, New Brunswick, British Columbia, Saskatchewan, Newfoundland and Labrador, and Nova Scotia held provincial elections, Yukon held a territorial election, and there were two federal by-elections in Toronto to fill vacant seats. (8) These experiences shone a spotlight on matters of election law that had long lain dormant, including most notably the scope of the legal authority of Chief Electoral Officers to adapt procedures set by statute in the midst of an election and when the power to delay or suspend an ongoing election should be exercised. The first three provincial votes ran relatively smoothly. The election in Newfoundland and Labrador, however, was interrupted by a COVID-19 outbreak and illustrated the importance of resolving these previously obscure matters.

   Jurisdictions around the globe have adopted diverse strategies in their attempt to balance the necessity of elections for democracy with public health and safety. South Korea opted to modify in person voting procedures to facilitate physical distancing and sanitary transfer of materials such as ballots. (9) France, (10) Poland, (11) and Mali (12) all notably conducted elections early on in the pandemic, with varying degrees of success. Many other jurisdictions have postponed scheduled elections. Where they have gone ahead, voter turnout has generally been moderately down. (13)

   In the United States, COVID-19 hit during the frenzy of state primaries. Some states delayed elections or reorganized their administration. The state of New York cancelled its Democratic Presidential Primary in order to focus on congressional and state races scheduled for June 2020. (14) After litigation around access to mail-in ballots reached the United States Supreme Court, Wisconsin proceeded with largely in person voting for elections to congressional offices and the state courts. (15) Local public health authorities have since concluded that a number of voters and poll workers contracted coronavirus by virtue of participating in election day. (16)

   For the Presidential election culminating in election day on November 3, 2020, voting by mail proved popular. Extensive litigation accompanied the efforts of states seeking to expand access to the ballot box despite the pandemic or, in some instances, to hinder access. (17) Prior to his ban from the social media platform, President Trump repeatedly tweeted baseless allegations that voting by mail would lead to electoral fraud against him. (18) His tweets highlighted one partisan interpretation of attempts to ensure access to the ballot box in the face of the pandemic.

   This article assesses the main legal issues raised by the prospect of conducting a federal election in Canada during the pandemic. (19) Building on the experiences in other countries and in the Canadian jurisdictions that have held pandemic elections, I argue for new measures to ensure access to the fundamental right to vote in the face of the pandemic. These reforms include measures at polling stations to ensure public health, the expansion of advance voting, and for mail-in voting rules that maximize access. Implementing some of these reforms would require legislative amendment. Passing amendments in a timely fashion may be a challenge, however, in a minority Parliament that is justifiably occupied with urgent matters related to the pandemic and with limited sitting hours in the midst of an experiment with virtual proceedings. (20) As of the time of writing, a bill to enact some amendments remains before the House of Commons. (21) Parliament should urgently turn its mind to the likelihood of a pandemic election and what reforms are needed.

   Section II discusses the legal framework for conducting elections during an emergency. In sum, the regular rules in the Canada Elections Act largely continue to apply and are not displaced by either emergency legislation or special provisions in the Act itself. The main uncertainty stems from the scope of the Chief Electoral Officer's power to adapt provisions of the legislation and the roles of the various institutional actors if an ongoing election was to be interrupted by an emergency.

   Section III summarizes and analyzes the current options for casting a ballot in federal elections. Canadians have a variety of methods, including voting in person or by mail. The section argues that reforms are necessary in light of the pandemic. Section IV addresses in person voting during a pandemic. It discusses, in particular, changes within polling stations to adapt to the pandemic and the expansion of early voting opportunities.

   Section V analyzes the pressing topic of mail-in voting. It summarizes what we know about public attitudes to mail-in voting during the pandemic, canvasses models for voting by mail in other jurisdictions, and assesses the deficiencies in the current framework in the Canada Elections Act. I argue that the existing system for voting by mail appears likely to be inadequate if used on a much wider scale than in previous elections, when few votes were cast in that fashion. Voter education should be a priority to maximize the chances that Canadians who intend to cast their ballots by mail will follow the proper procedures and, therefore, have their votes counted. Legislative reforms are also needed, however, to ensure that all votes cast and received within a reasonable timeframe are counted. The bill before the House that would amend the Canada Elections Act in response to the pandemic does not, in my view, go far enough in updating the legal framework for voting by mail.

2. EMERGENCIES AND ELECTIONS

   Federal emergencies legislation is surprisingly silent with regard to elec-tions. (22) The relevant legislation is therefore the Canada Elections Act. None of the legislation passed by Parliament in direct response to the pandemic to date has addressed elections. (23) Bill C-19, An Act to amend the Canada Elections Act (COVID-19 Response), received first reading on December 10, 2020, but did not become law before the general election was called on August 15, 2021. (24)

   1. Adaptions and Postponements

      The Chief Electoral Officer (CEO) has wide authority under section 16 of the Canada Elections Act to "exercise general direction and supervision over the conduct of elections" including by issuing to election workers the "instructions that the [CEO] considers necessary for the administration of [the Act]." (25) Section 17 permits the CEO to adapt the provisions in the Act as necessary in order to run an election, but "solely for the purposes of enabling electors to vote and counting the vote." (26) Many features of election administration are therefore outside of the special authority provided by section 17, including registration, candidate nominations, protection of health at the polls, and so on. (27)

      The existing legal framework therefore largely applies rather than any special set of emergency provisions, with the possible exception of an expanded use of the authority granted under section 17 and the particular scenario of a natural disaster occurring after the election has commenced. The lack of specific treatment of electoral emergencies in either electoral or emergency statutes is also prevalent in the United States, (28) though with exceptions, (29) such as statutory authority in some states to postpone elections. (30)

      Elections Canada has proposed an expansion of its powers under section 17. It favours a legislative amendment such "that section 17 be superseded by a provision that authorizes necessary adaptations with all areas of the [CEO's] mandate while maintaining some prohibitions." (31) This proposed revision would therefore...