The Supreme Court is loath to interfere in electoral politics. In upholding the result in Etobicoke Centre, the judges have retained that historic deference to Parliament and the electors.
Though they were clearly torn on the issue – the majority was the narrowest possible, 4 to 3 – the judges did not simply restore a passel of voided ballots. They affirmed that, barring egregious sins of omission or commission, election results must be allowed to stand.
Those results “should not lightly be overturned,” the majority stated in their decision. There is good reason for such judicial restraint.
Politics is a bloody arena, and the May 2, 2011 federal election produced more than the usual amount of gore.
Opposition politicians and activists have accused the Conservatives of electoral dirty tricks in Guelph and in other ridings across the country. Elections Canada continues to investigate those allegations.
Such complaints of vote fraud were not at issue in Etobicoke Centre. But the contention that votes were improperly cast or counted in the riding was part and parcel of the opposition indictment of the vote, feeding into worries that somehow the election result itself wasn’t valid, that the Conservatives’ majority government wasn’t legitimate.
The courts wade into such murky waters at their peril. The independence of the judiciary from the legislature is a cornerstone of the checks and balances on which parliamentary democracy is based.
The Court affirmed, in its decision, that judges must not become embroiled in such partisan contests unless absolutely necessary. Given any kind of choice, judges must stand aside. Thursday morning, the Court stood aside.
This is, of course, not the end of the story. Robogate – the alleged used of robocalls to misdirect Liberal supporters – continues to fester.
To cauterize that sore, the Harper government is expected to introduce legislation, perhaps as early as this autumn, to tighten and clarify the rules surrounding voter identification and mobilization by political parties.
The Conservatives are hoping the bill will remove the taint of wrongdoing that clings to their campaign techniques.
But they will need to be careful. Jean Chrétien’s government, in the wake of the sponsorship scandal, reformed campaign finance rules so thoroughly that the Liberals lost access to their most important source of funds: corporate donations. The party still hasn’t recovered.
For the sake of their own survival, the Tories will need to ensure, with their legislation, that elections are demonstrably free and fair without crippling their far-superior campaign machine.
But that is a political balancing act. The Supreme has simply affirmed, with its decision, that such matters are for Parliament, and ultimately the voters, to decide.
Caution in interpreting election results has always been their watchword. And so it remains.