Cara Faith Zwibel, Director of the Canadian Civil Liberties Association's Fundamental Freedoms program
A supporter of Stephen Harper's government has suggested that Elections Canada is in an inherent conflict of interest because of its twin goals of increasing voter turnout and improving the integrity of the system. It is argued that, in light of this conflict, Elections Canada's concerns about the government's proposed Fair Elections Act can't be taken seriously. Does this conflict really exist?
Since its introduction in early February, the government's proposed Fair Elections Act has been widely debated in the pages of our major newspapers, the focus of town hall meetings held across the country by the NDP, and the subject of testimony and heated questioning before a House of Commons Committee. The bill has even been the topic of a pre-study by a Senate Committee, an indication that the government would like to move it forward quickly. One of the most hotly contested parts of the bill would put an end to vouching, a process that allows people without appropriate identification to vote, provided another elector in their polling division is able to vouch for their identity and residence.
The government says that vouching undermines the integrity of our system and wants to eliminate it. Opponents – and there are a lot of us – argue that there is no evidence supporting the need to end vouching and that doing so could disenfranchise more than 100,000 Canadians. The government has also gone on the offensive against Elections Canada, an institution with a stellar reputation around the globe.
The recent argument that Elections Canada is in a conflict of interest because of their competing goals merits examination. The suggestion is that the two goals of increasing voter turnout and improving electoral integrity are fundamentally at odds. At a superficial level, there is some validity to this argument. A system that maximizes electoral integrity will necessarily impose stringent requirements on voters, including identification requirements. This will, in turn, mean less people who are able to cast a ballot. Conversely, if we try, at all costs, to maximize the number of people who vote, we need to lessen strict ID requirements which might, in turn, undermine integrity. Of course, this is not a true conflict of interest, just a fact of life in that that sometimes, individuals and institutions have to try to achieve more than one goal at a time. A restauranteur wants to maximize business (and therefore turn over tables) while at the same time providing great service to patrons. This doesn't create a conflict – just a need to balance interests. The question to be asked about the Fair Elections Act: does it strike the right balance? This is really the essence of the meaning of fairness, after all.
If the government is taken at its word, vouching needs to be eliminated to ensure electoral integrity because of the evidence that there have been lots of problems with vouching in the past. It is significant that since the bill was introduced just two short months ago, the government narrative has shifted from one of "cracking down on voter fraud" to bolstering "integrity" and correcting "irregularities". That shift was a necessary one since there is, in fact, no evidence that the problems with vouching allowed voters who were not entitled to vote to do so and certainly no evidence – none at all – of voter fraud. The Minister of State for Democratic Reform can cherry-pick statements from an independent report pointing to the "serious" nature of the irregularities, but that doesn't change the fact that both the report and the Supreme Court of Canada (in a recent contested election case) have made clear that there is no evidence that anyone who was not entitled to vote has been permitted to do so due to the issues surrounding vouching.
The problems that have been identified with respect to vouching are serious; they do threaten to undermine integrity and should be fixed. But if we are seeking to balance the twin goals of integrity and enfranchisement, we can't sacrifice one on the altar of the other. More importantly, if we want to re-jig the current balance, we need to look at the evidence. Laws are supposed to address existing problems, not hypotheticals. Public perception is important, but the fact that some may mistakenly believe that vouching leads to fraud is not a reason to take away the fundamental right to vote. Our Supreme Court has already recognized that the Canada Elections Act "reflects the fact that our electoral system must balance several interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost. But the central value is the Charter-protected right to vote." Somewhere along the way, this central value has been lost. It's time we re-discovered it and put it at the centre of our discussions on electoral reform.