Lori Turnbull is the director of the School of Public Administration at Dalhousie University.
The provincial election in Newfoundland and Labrador has gone completely sideways. Due to an explosion of cases of COVID-19, Chief Electoral Officer Bruce Chaulk has changed the plan for the vote. Twenty-two of the province’s electoral districts will have access to in-person voting on February 13, but the remaining 18 ridings – where the cases are concentrated – will not have this option until a yet-to-be-determined date.
When Premier Andrew Furey requested a dissolution of the legislature on January 15, the province was reporting only five active cases of COVID-19; on February 12, it had 260. Three other provinces have held elections during the pandemic period without any major problem, so Mr. Furey could be forgiven for assuming that the same would happen in Newfoundland and Labrador. But now the province finds itself in a rare and highly undesirable situation of political purgatory: It is stuck in an election without a clear end date.
Postponing the election, given the surge of cases, is a no-brainer. However, this decision poses challenges from a legal and constitutional perspective and has the potential to undermine the real and perceived integrity of the electoral process.
The Elections Act gives the chief electoral officer (CEO) the power to extend the time for an election in emergency circumstances. However, there has been a lack of transparency around how the decision to partially postpone the election was made. The CEO seemed to be waiting for Chief Medical Officer Janice Fitzgerald to make the call, which she was understandably not inclined to do. No public servant, including and perhaps especially the CEO, wants to make decisions that could affect political and partisan outcomes.
After receiving messages from election workers indicating that they did not feel it safe to show up on Saturday, Mr. Chaulk made the announcement to postpone indefinitely the in-person vote in almost half of the province’s ridings. In a press conference on Thursday, Dr. Fitzgerald dodged questions about the extent to which her advice affected Mr. Chaulk’s decision. Mail-in ballots have been extended across the province until February 25; it is the role of the CEO to make this option available, but it would be outside the scope of Mr. Chaulk’s mandate to actively encourage voters to use it.
Until a new or returning government is sworn in, the Liberal government – which was in a minority position at dissolution – has to continue in a caretaker capacity, which means that it ought not make decisions that will introduce new programs, necessitate new spending or bind future governments. This is difficult to reconcile in a pandemic. Also, since the legislature is dissolved until election results are confirmed and the new House of Assembly can be summoned, there is no way for the government to test the confidence of elected representatives. There are no elected representatives. If this continues for any period of time, the government will lack the legitimacy it needs to lead the province through the economic and public-health crises it faces.
Opposition leader Ches Crosbie has suggested that the partial postponement creates two classes of voters, meaning those who vote later will have more information to go on. To be fair, we always allow voters to cast ballots at different times during a campaign. Advance polls are meant to provide convenience and accessibility to increase voter participation. However, the problem in this case is that we do not know how much time will lapse between the vote on February 13 and a second in-person vote for the affected ridings.
Things can change quickly in politics. It is possible that new issues, facts and arguments could come to light in the interim period that could affect voter preferences. Some voters who cast ballots on February 13 could end up regretting their choice but would not be permitted a do-over. None of this is ideal or particularly fair. Another unintended consequence of a staggered vote is suppressed voter participation; people might be inclined to check out of a protracted election during a pandemic. Parties and candidates will have to work hard to keep them interested. And when the CEO eventually decides to commence the in-person vote for the 18 affected ridings, the timing of this decision will be criticized by those who feel it confers an unfair advantage for certain parties and candidates.
Is it time to consider more seriously the option of online voting? Though vaccines are coming, we are far from out of the woods. Lockdowns might be more of a permanent feature of our lives than we want to acknowledge. Online voting could be a way to curtail electoral disruption during emergency periods. These are issues and questions that all jurisdictions in Canada should put a mind to as we collectively watch the situation unfold in Newfoundland and Labrador, particularly given the high likelihood of a federal election later this year.
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