Michael Pal is an associate professor in the Faculty of Law at the University of Ottawa.
Is it possible to safely run an election during a pandemic? That’s the question now faced by democracies around the world due to COVID-19 – and countries are tackling it with mixed results.
In April, South Korean voters casting ballots in person for legislative elections had to wear masks, agree to physical distancing measures, and use gloves and hand sanitizer provided to them. The election was a relative success – it went forward and there was no evident downside for public health. In the U.S., meanwhile, various states are working to make submitting mail-in ballots easier in advance of November’s election. While voting is a fundamental right, this has become a polarizing issue there: U.S. President Donald Trump has repeatedly made serious, though unsubstantiated, claims that expanding vote-by-mail might lead to fraud. A legal dispute over the deadline for absentee ballots in Wisconsin’s primaries during the pandemic also went all the way to the U.S. Supreme Court, and it is unlikely to be the final such case to do so.
There are real consequences beyond the merely political, of course. Any mass event that requires people to be physically present in indoor spaces raises obvious public-health risks. Transmission to large numbers of voters or to poll workers, many of whom are vulnerable senior citizens, would be a nightmare scenario.
This may all feel less-than-urgent in Canada; after all, Canadians went to the ballot box just last year and the fixed-date federal election is not scheduled until 2023. However, Canadians elected a minority Parliament in October, and it could be dissolved at any time – and the pandemic does not appear likely to abate anytime soon.
Yet federal emergency legislation is silent when it comes to elections. None of the regulations issued or legislation passed in 2020 to deal with the pandemic have anything to say about them, either. Any federal election would therefore be run under the existing provisions of the Canada Elections Act.
Some might look to online voting as our saving grace. Unfortunately, the technology is just not secure enough. Canada’s outward-facing national security agency has repeatedly warned of online foreign interference in elections. Even if it’s technologically feasible, hastily implemented online voting in such an environment would be a disaster.
In-person elections might simply not be possible in all ridings. “Based on the advice of public health experts,” Elections Canada warned in April, “... the Chief Electoral Officer could certify that it has become impracticable for Elections Canada to administer the election in one or several electoral districts.” If in-person elections do go ahead during the pandemic, turnout could be abnormally low if people choose to stay away from the polls, while traditional in-person interactions such as rallies and door-to-door canvassing would have to fall by the wayside.
Voting by mail has been seen as an obvious alternative; here in Canada, the Conservative Party is already using mail-in ballots to choose its next leader. The operational challenge is whether voting by mail can be scaled up for a federal election. The vast majority of Canadians cast ballots in person at a polling station in 2019, despite other options being available. While the chief electoral officer has extensive discretion, legislative amendments to the Elections Act would be needed to make mail-in voting available to all. The appetite or capacity of a minority Parliament to agree in a timely manner on changes for how we run elections is unclear.
Tough choices around safety and scarce resources might also lead to litigation. U.S. states such as Texas have introduced vote by mail for upcoming elections, but only for seniors, presumably to ensure that the highest-risk groups were able to vote remotely – but these efforts have prompted legal challenges alleging this harms access for younger voters. Selectively expanding voting-by-mail in Canada would be similarly vulnerable to a Charter challenge.
If there is in-person voting, modifying polling stations as in South Korea would seem logical, though it would require necessary supplies to be available, which cannot be taken for granted given past disruptions. Expanding the times and locations for early voting would also disperse voters and minimize polling-station congestion.
While the fixed election date might make the next federal election seem deceptively far away, the clock is already ticking. If legislative changes are needed, as seems likely, then Parliament needs to add setting the rules for a pandemic election to its already crowded plate.
Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.