As Newfoundland and Labrador’s delayed election stretches on for at least another two weeks, concerns about whether its results will wind up in court are growing.
The election was upended last week amid an outbreak of COVID-19 in St. John’s, and provincial NDP president Kyle Rees said Tuesday that a legal challenge seems to be “the direction this is trending.” But Rees, a lawyer, added there could still be surprises.
“I mean, as my grandmother would say, who knows the mind of a squid?” he said in an interview.
The election has been slippery since Friday night, when public health officials introduced provincewide lockdown measures to deal with a rapidly growing COVID-19 outbreak. Chief electoral officer Bruce Chaulk promptly cancelled all in-person voting, which was set to begin the next morning in much of the province, and extended the deadlines for mail-in ballots.
Those deadlines were further extended Sunday, and all ballots are now due March 5. Meanwhile, website and telephone issues have dogged the elections authority as people scramble to secure a ballot.
It’s still not clear when the votes will be counted and the results announced, and that could be a potential legal problem, said Ottawa-based constitutional lawyer Lyle Skinner.
Newfoundland and Labrador’s Elections Act doesn’t technically allow Chaulk to run an election with an undetermined end, Skinner said in an interview Monday. That opens the door for a voter or a candidate to bring the results of their district before a judge to determine whether Chaulk exceeded his authority under the existing legislation.
There’s also a concern that people could be excluded from voting because of the new mail-in ballot format, Skinner said. “If so, is that infringement justified … under the (Canadian Charter of Rights and Freedoms)?” he asked. “That question is something that can only be determined by the courts, but also at the end of the election.”
Skinner stressed that there is no way to cancel the election – the laws don’t allow that. Instead, Chaulk was forced to work within the confines of the legislation to find the best solution.
The NDP and Progressive Conservatives have been pleading unsuccessfully for an all-party meeting with the chief electoral officer to address complications arising from the mail-in vote. Chaulk initially agreed to a meeting but then cancelled, Rees said.
“I will address your concerns as time permits. However, I have an election to run,” Chaulk wrote Sunday in an e-mail to party officials and shared with The Canadian Press. An Elections NL spokeswoman said Tuesday that Chaulk was unavailable for an interview.
The Liberals have said they fear that a closed-door meeting between the chief electoral officer and the parties would jeopardize voter perception of Chaulk’s political neutrality.
“We all agree everyone must have an opportunity to vote – the partisan focused meeting attempted by the Progressive Conservatives will not further that goal, and may even harm it,” Liberal party co-chair John Samms said in a statement Tuesday.
His comments came as the Progressive Conservatives ramped up their efforts to meet with Chaulk, writing to demand a meeting of an advisory committee, which is provided for in the elections law and made up of party representatives and the chief electoral officer. If the move were successful, it would essentially force both Chaulk and the Liberals to the table.
“There is a crisis right now in our democratic system because there is not roughly equal access to the right to vote,” Tory leader Ches Crosbie said in an interview Tuesday.
When asked if his party would consider raising a challenge in court, Crosbie said, “Court proceedings in the middle of such a mess are always possible, but the meeting of the advisory committee is our best chance for avoiding that.”
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