Stephen Harper's Conservative Party is making a final bid to quash six lawsuits trying to overturn Tory election victories because of alleged misleading robo-calls, arguing that their critics have failed to produce one witness who can testify that they were dissuaded from voting.
In a memorandum of fact and law Monday, the Conservatives are asking a federal court judge to toss the long-running court case for lack of proof that the Tories suppressed the vote in the May 2, 2011 federal election.
Since last March, the party has been fighting six suits, underwritten by the left-leaning Council of Canadians, that allege misleading robo-calls or other harassing phone messages interfered with fair ballots in ridings from Yukon to Toronto.
"The lack of evidence in this proceeding is staggering," says the brief, filed on behalf of six Conservative MPs. It's the final written submission before the court hears oral arguments and a federal judge is then charged with ruling on the matter.
"If thousands of people had really been fraudulently deprived of their right to vote, and tens of thousands above that number were intended but unsuccessful targets of such fraud, this Court could expect what the courts experienced in the American cases the applicants cited: a wave of fact witnesses, made up of both partisans and outraged, disenfranchised electors," it says. "So where are they? Where is one?"
Citing an October Supreme Court decision that ruled against overturning the 2011 election results in a Toronto riding, the Conservatives are arguing the federal court has no choice but to dismiss the challenge.
What the case against the Tories relies upon is a poll by Ekos pollster Frank Graves that the plaintiffs charge demonstrates strong evidence of a targeted program of voter suppression aimed at non-Conservative voters during the federal election campaign.
Mr. Graves's survey found voters in the ridings were roughly 50 per cent more likely to say they had received illegitimate calls than those in 106 surveyed "comparison" ridings, many of which had no reports of illegal calls.
About three times as many Liberal, New Democratic and Green supporters as Conservative supporters claimed they were given false or incorrect information about polling station locations in the last two or three days of the campaign, Ekos found.
The Conservatives, however, dismiss the poll as a "deeply flawed push-button telephone survey," saying the only evidence that anyone was deterred from voting is purely statistical.
Ekos found a small but important percentage of respondents surveyed in the ridings in question stayed home because of calls concerning changes to polling station locations.
The Tories argue that unidentified survey respondents are not witnesses by any stretch. "The only persons the applicants have been able to find that have actually 'alleged' that irregularities, fraud or corrupt or illegal practices caused them not to vote (by pushing #1 on their keypad) are a handful of anonymous survey respondents who cannot … be cross-examined.
"The survey did not check to see if the answering party was a child or a person eligible to vote. It did not employ live followup to ensure the push-button responses were accurate and … it concerned 10-month-old events and had no option for 'I don't remember.' "
The October Supreme Court decision that allowed Tory MP Ted Opitz to keep his narrowly won seat despite voting-day clerical errors by Elections Canada reflected the court's historic deference to Parliament and electors, and set a high standard for deciding whether to overturn results.
"An election should not be decided in a courtroom," the Tory brief says. The Supreme Court expressed its concern in the Opitz decision that "permitting elections to be lightly overturned" would spawn a raft of legal challenges to other election outcomes, the Conservatives note.
For the court to agree with the Council of Canadians would "be to disenfranchise the 220,352 electors in the subject ridings, annul six certified election results, and remove the respondent Parliamentarians, who were duly elected by those voters, from office."