When courts decide elections.

• Author: Morin, Jacques Carl

Investigations into voter irregularities in the 2011 federal election have led to some court challenges. While it is unusual for courts to overturn the result of an election and order a new one, it is even more rare for a judge to declare one candidate elected in place of another. However, this did occur in three cases discussed in this article.

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In 1872, Quebec's legislators made the courts responsible for ruling on the validity of Legislative Assembly elections. The Superior Court and subsequently the Magistrate's Court, the Provincial Court and the Court of Quebec each had the task of deciding contested elections. (1)

The court deciding a legislative election can confirm the election of a member of the legislature if it concludes that the allegations are unsubstantiated or the irregularities it identified did not affect the results of the election. (2)

The results can be deemed invalid if the election involved fraud (3), if the irregularities are greater than the winning margin of the victorious candidate (4) or if the winner is determined to have been ineligible. (5) The courts have declared about fifty elections void for these reasons, mostly in the 19th century.

In addition, one candidate can be awarded a seat in the place of another. This happened in the Quebec elections in Montmagny in 1881 and in l'Assomption in 1960. A similar situation happened in the Bristol South East election in Great Britain in 1961.

Montmagny

Louis-Napoleon Fortin was elected as the Liberal Member of the Legislative Assembly (MLA) for the riding of Montmagny in a by-election on November 30, 1876, and was re-elected in the general election of 1878. On October 29, 1879, he joined the Conservative Party with four of his colleagues, leading to the fall of Joly de Lotbiniere's Liberal government. The floor-crossers were nicknamed the "five sheep" or the turncoats. Fortin was Turncoat Number Five. (6)

Fortin ran for office again in Montmagny in the general election of December 2, 1881, this time as a Conservative, against Liberal candidate Nazaire Bernatchez. Under Joseph-Adolphe Chapleau's leadership, the Conservatives elected 50 MLAs while the Liberals were left with 15.

In Montmagny, the returning officer's definitive count of the votes from all ballot boxes gave a 16-vote majority to the Liberal, Bernatchez. (7) Fortin asked for a judge to count the ballots again. Judge Auguste-Real Angers reviewed each ballot and rejected 27 from one of the two boxes in the parish of Saint-Francois.

Fortin was declared elected with a four-vote majority. Even if fraud is suspected, the role of the judge overseeing a recount is limited to reading, attributing or rejecting ballots, as the case may be, and counting them to establish the election results.

Bernatchez filed a petition to contest the election within the statutory deadline, demanding that the rejected ballots be accepted and that he be given back the mandate Fortin took from him. Although the matter was before the courts, Fortin could be sworn in as an MLA and...