While watching the Supreme Court hearing on the Etobicoke Centre election challenge this morning, I was struck by a couple of the arguments, and the questions put forward by a couple of the justices, and in particular, Chief Justice Beverley McLachlin. The issue in question was record keeping, or the lack thereof in some of the instances in question with the challenge.
The arguments put forward by Ted Opitz’s lawyer suggested that the issues were “mere technicalities” and shouldn’t be used to disenfranchise voters because of mistakes that Elections Canada officials made. This position was challenged – and rightly so. These rules exist for a reason, and the need for documentation and record keeping acts as a safeguard. Chief Justice McLachlin at one point said that the presumption seems to be that since we’re not Afghanistan, we shouldn’t worry about it, even though these kinds of breaches might be questioned in such a country. Justice Abella also at one point asked that if these technicalities don’t matter, then why bother having the Elections Act guidelines at all?
This question of excusing sloppy record-keeping in this instance as an invitation to future lapses was also put to the intervenor from Elections Alberta, who danced around his response about elections officials being concerned with process, but that one can’t disenfranchise voters willy-nilly.
He’s correct in that regard, and we should take the issue of disenfranchisement very seriously, but added to that is the notion that if we want to keep the right to vote meaningful, it must be treated as such by all sides – by Elections Officials who can’t simply excuse poor record-keeping as “these things happen” because of the way in which these issues lie at the heart of our system of electoral accountability, and by voters themselves. If the right to vote is precious – and indeed it is – then does a voter not have an onus to ensure that they have the proper documentation and that arrangements can be made if there are irregularities with their condition? Or has the value of their vote been so devalued that it’s an expectation that they’ll simply be given their ballot and that their duty to ensure that it’s handled in an accountable manner is worth nothing at all?
I’m particularly struck by the record-keeping arguments in part because of a previous career in records management, and much of that time having been spent in the federal bureaucracy. I’ve seen the way that record keeping is handled in these kinds of institutions, and it’s a pretty appalling state of affairs. Part of that reason is because there is no culture of responsibility when it comes to documents in the civil service – people never feel it is their responsibility to ensure that things are filed properly, or handled in an archival manner, or that they can even be located at some future date. People retire, and the contents of their offices are simply thrown into boxes and thrown into warehouses. (I know because I had to triage tonnes of those boxes dating back decades). People walk around with documents of high security classifications that should never leave their desks, and yet they swan about with them at the Tim Horton’s downstairs because they don’t care – they don’t feel it’s their responsibility to.
And this gets to what Chief Justice McLachlin was asking – if we simply say that hey, these things don’t matter, that elections officials can lose or misplace documents because they feel it’s not their problem, do we simply invite that slouching to carry forward unchallenged? Or does the Court say that hey, this kind of thing is important, this is a key accountability mechanism, and if you guys don’t do your jobs properly then voters might be disenfranchised by sheer virtue of the fact that you didn’t do your job properly? Would such a finding raise the stakes enough that it would force Elections Canada to double or triple their training efforts (and I have heard from a lot of people who have worked at polls in the past who say that more training is needed, and from people who realised that hey, they haven’t had their training updating in three elections and maybe they could have used a refresher course)? Would it make elections workers and volunteers think twice when they decide to cut corners because they’re tired? Is there enough of a moral hazard to reintroduce the culture of responsibility that needs to be in place? (And the moment someone complains about how much that added training would cost, well, democracy costs money. Deal with it.)
It is a tough question that the Court will be wrestling with, but it’s an important one. I’ll be very curious to see what their verdict and reasoning is.