Fernando Morales/The Globe and Mail
The democratic process has refined itself over time to overcome attempts at subversion.
The secret ballot was introduced to end the practice of physically intimidating or even violently assaulting those who were brave enough to vote against the wishes of local thugs. The Voting Rights Act in the United States was the landmark 1964 law that ended the discriminatory practices suppressing African-American voters from exercising their rights in the South. In many jurisdictions, independent election administrations were created to take the partisanship out of overseeing elections.
These measures have curtailed some of the worst elements of political disenfranchisement. But the rising tide of organized voter suppression is the next major challenge facing proponents of a free and democratic system.
In the United States, low turnout is leading to less emphasis on convincing low-information swing voters to cast their ballot for one side or the other. Uninformed voters simply don't vote south of the border, so elections are increasingly a battle to see who can goose their supporters enough to maximize turnout.
While this turn of events leads to increasing polarization in the political culture and bad public policy, even worse is the increase in techniques designed to decrease your opponents turnout. Voter suppression is one of the more unfortunate techniques of political management. It is the attempt to prevent or intimidate your opponent's supporters from even casting a ballot.
The practice is widespread and some political operatives regard voter suppression as the only path the victory. Famously, a Michigan state legislator said in 2004, "If we do not suppress the Detroit vote, we're going to have a tough time in this election." (It was ineffective as John Kerry took Michigan.)
There are allegations of suppression of Native American voters in South Dakota, Hispanics in New Mexico and African-Americans across the United States.
During the recent recall elections in the Wisconsin State Senate, the Republican-supporting interest group Americans for Prosperity sent numerous Democratic voters mail that gave a later deadline for absentee ballots. Voters who believed the deadline in the mailing may have waited too long for their ballots to be counted. (It was ineffective, as the Democrats defeated two Republican incumbents.)
During the 2004 election, Kerry campaign workers in Ohio were convicted of slashing the tires of 30 cars rented to shuttle Republican voters to the polls. At their trial, the judge told the Democrat operatives: "Voter suppression has no place in our country. Your crime took away that right to vote for some citizens." (It was ineffective, as George W. Bush narrowly won Ohio.)
There were allegations in Virginia in 2006 of widespread use of phone calls and pamphlets aimed at confusing voters and reducing turnout by minorities that typically vote Democrat.
» Democrat voters received calls telling them incorrectly that voting would lead to them being arrested. Tim Daly, a registered Virginia voter, received and taped a voicemail stating: "This message is for Timothy Daly. This is the Virginia Elections Commission. We've determined you are registered in New York to vote. Therefore, you will not be allowed to cast your vote on Tuesday. If you do show up, you will be charged criminally."
» There were co-ordinated calls fraudulently claiming to be volunteers for the Democrat, telling voters of false changes in voting locations. Norman Cox of Arlington had voted at the same location since 1972. During the 2006 election, a person from a 406 area code in Montana called to tell him that his polling place had changed.
» Filers paid for by the Republican Party targeted African-American voters, saying " Skip the Election." This was perceived as an attempt to intimidate African-Americans from casting their ballot.
The widespread nature of the voter suppression attempt led to a major FBI investigation into voter intimidation and harassment. (Voter suppression was again ineffective as Democrat Jim Webb defeated Republican George Allen.)
One of the best examples of phone voter suppression was the 2002 New Hampshire Senate race. Republican operatives used a telemarketing firm to jam the phone lines of the Democrats' get-out-the-vote operation, paralyzing attempts to mobilize voters.
State GOP executive director Charles McGee decided to draw on his military background and " disrupt enemy communications." As a result of his conspiracy, four men were prosecuted for violation of federal statute and imprisoned. (One was freed on appeal and then charged later with lying to the FBI during the original investigation.)
What can we do to prevent voter suppression from coming to Canada?
The best prevention against vote suppression is education. The main information for source about the election is Elections Ontario. Ensuring their website provides an opportunity to report improper practices and educated voters on what to look out for would be useful.
More significant moves are also possible. California recently introduced a Voter Intimidation Restitution Fund, which uses the fines from those convicted of vote suppression crimes to assist in paying for voter education initiatives to prevent misinformation in the first place. Ontario should consider moving to a similar fund if these imported techniques gain any foothold here.
Finally, Elections Ontario needs to treat voter suppression as the crime it is. The first line of defence is the Election Act, which bans voter interference and attempts to mislead voters about where to cast their ballots.
As you can see, the penalties for such crimes are severe, including up to $25,000 in fines and two years less a day in prison, as well as loss of any provincial office and an eight year ban from holding a provincial office:
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Interference with exercise of vote
96.2 (1) A person who, inside or outside Ontario, prevents another person from voting or impedes or otherwise interferes with the person's exercise of the vote is guilty of an offence and on conviction is liable to a fine of not more than $5,000. 2011, c. 17, s. 3.
Party to offence
(2) A person who, inside or outside Ontario, does anything for the purpose of aiding another person to commit the offence described in subsection (1), abets another person in committing it, or counsels or procures another person to commit it is a party to the offence. 2011, c. 17, s. 3.
Impersonation
96.3 A person who, inside or outside Ontario, falsely represents himself or herself to be any of the following is guilty of an offence and on conviction is liable to a fine of not more than $5,000:
1. An employee or agent of the office of the Chief Electoral Officer.
2. A person appointed under this Act.
3. A candidate or a person who is authorized by the candidate to act on his or her behalf.
4. A person who is authorized by a registered party or registered constituency association to act on its behalf. 2011, c. 17, s. 3.
General offence
97. Every person who contravenes any of the provisions of this Act, for which contravention no penalty is otherwise provided, is guilty of an offence and on conviction is liable to a fine of not more than $5,000. R.S.O. 1990, c. E.6, s. 97.
Corrupt practice
97.1 If, when a person is convicted of an offence under section 90, 94, 95, 96, 96.1, 96.2 or 96.3, the presiding judge finds that the offence was committed knowingly, the person is also guilty of a corrupt practice and is liable to one or both of the following:
1. A fine of not more than $25,000, instead of the fine that would otherwise apply.
2. Imprisonment for a term of not more than two years less a day. 2011, c. 17, s. 4.
Corrupt practice, effect of conviction
98. (1) A person who is convicted of a corrupt practice,
(a) shall forfeit any office to which he or she was elected; and
(b) is ineligible to stand as a candidate at any election or to hold any office at the nomination of the Crown or the Lieutenant Governor in Council until the eighth anniversary of the date of the official return.
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However, all the legislation in the world won't make a difference if the appropriate authorities will not treat voter suppression as the crime it is.
Much like auditors-general, who began to use their powers to uncover real problems of mismanagement, Elections Ontario needs to effectively expose wrong-doing in electioneering.
If there are examples of voter suppression in this election, Elections Ontario needs to be held responsible by the public to find the criminals involved and prosecute them to the fullest extent of their ability.