Harry Neufeld on the Fair Elections Act

Here is the prepared text of the opening statement delivered by Harry Neufeld, the former electoral officer who has quibbled with the government’s interpretation of his reporting on election procedures, to the Procedure and House Affairs committee this morning.

Thank-you, Mr. Chair.

My thanks to you and this Committee for inviting me here.  I will make some short introductory remarks, after which I will be pleased to answer any questions Members of the Committee have related to Bill C-23, The Fair Elections Act.

Last week, I worked at an orientation conference for senior election officials in one of our provinces. It was attended by a great many newly appointed Returning Officers and Election Clerks who have never managed elections before.

I found the trainers were particularly effective in offering a window on democratic first principles that are supported in law around the globe.

The “universal and equal suffrage” guarantees that Canada has supported in both Article 21 of the 1948 Universal Declaration of Human Rights and Article 25 of the 1966 International Covenant on Civil and Political Rights were rightly described as foundational to the conduct of free and fair elections.

Consistent with these principles, the trainers described their provincial election act as a legal vehicle providing all resident citizens, over the age of 18, with opportunities to exercise their constitutional rights guaranteed by section 3 of Charter of Rights and Freedoms, where it says:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

The inclusive and unqualified scope of this Charter clause—which I have read and heard quoted hundreds of times since it became law in 1982—caused me to reflect on how electoral franchise laws in Canada have evolved and how Bill C-23 departs markedly from that evolution.

There is a healthy but constant tension in every voting system between the two equally important goals of providing broad accessibility, based on the fundamental franchise rights I just mentioned, and ensuring procedural integrity that maintains citizens’ confidence in the process itself.  Canada is no different in this regard.

By accessibility, I mean the ease and flexibility by which all eligible voters can obtain a ballot at election time—the considerable extensions to advance voting provisions are one clear example of this.

By integrity, I mean employing administrative mechanisms to ensure that only eligible electors vote, that they only vote once, that their vote is kept secret, that each ballot choice is counted accurately, and that—except for maintaining the first principle of ballot secrecy—the entire process is conducted in a fully transparent manner.  The introduction of voter ID laws in 2007 are an example in this context.

In its current form, Bill C-23 creates a fundamental imbalance between accessibility and integrity.  It introduces a requirement that every elector must provide acceptable documentation to prove both their identity and address of residence prior to being issued a ballot.  The Bill would eliminate the current ability of a registered voter, who has the prescribed identity documents, to vouch for one other elector who does not possess sufficient documentation to prove both their identity and address.  Further, it bars the Voter Information Card, which Elections Canada mails to each registered voter to advise them where and when to vote, from being used as documentary proof of residential address.

The Minister of State for Democratic Reform has stated that vouching must be eliminated “to crack down on voter fraud”.  He has also stated that Voter Information Cards must be eliminated as identification for confirming a voter’s address because these cards are a “replacement for acceptable ID”.

The Minister has used the 2013 Compliance Review report I authored, which drew attention to administrative errors made by election officers during the 2011 general election, as a basis for justifying the elimination of vouching.  He characterizes vouching irregularities in the context of undetected voter fraud.

I was engaged to audit aspects of the 2011 general election as a third party election expert, and it is important to me that my report is properly understood.  Having listened carefully to what the Minister has said, it is my opinion that he has not interpreted my report correctly.  Yes, my report articulates that there were serious problems with vouching during the last general election, as well as even greater numbers of irregularities in administering voter registration in conjunction with voting.  But voters were not the problem—the problem was with the system.

My observation was that election officers—ordinary citizens willing to work a very long day without breaks for minimum wage or less—had trouble completing a series of exceedingly complex procedures on their first, and only, day on the job.  My assessment focused on the fact that election officers are responsible for administering seventeen different exception procedures, of which vouching is just one, and often completed these procedures imperfectly.  My report concludes that this is a systemic problem related to our antiquated model for voting.  At no point in the report do I link vouching with fraudulent voting.

I have heard the Minister articulate that the absence of evidence of voter fraud doesn’t mean it hasn’t been happening.  I have heard him further suggest that Elections Canada simply isn’t aware of the level of voter fraud with vouching because the agency hasn’t investigated the many instances where legally required vouching procedures were not followed.  However, over the course of my study, I heard of no candidate scrutineers, voters, or media representatives ever raising an issue with respect to vouching fraud.  I am not aware of any formal complaints in this regard.   

Around the globe, I know of no election administrators that would launch an investigation into voter fraud without solid evidence or any credible allegations or complaints.

During the Etobicoke Centre court case, both the Ontario Superior Court and the Supreme Court of Canada were very clear: there was no evidence that persons who were ineligible to vote were allowed to vote due to procedural errors made by election officers.  My Compliance Review report clearly states this in several places.  So do the written court judgements themselves.

In addition, the Supreme Court judgement established a new precedent for deciding whether or not to accept votes when procedural irregularities are alleged.  This involves a two-step test: first, the occurrence of election process irregularities must be proven; second, evidence must be presented that satisfies the court that those procedural irregularities actually resulted in ineligible persons being permitted to vote.

Bill C-23 would eliminate vouching on the basis that the Minister thinks my report proves the process is so fraught with irregularities that it could lead to courts overturning election results.  The irregularities I identified have been equated with voter fraud by the Minister, as he implies that both legal tests have been met and that elections will be overturned if vouching continues.  In the name of improved procedural integrity, the Bill would see fit to disenfranchise more than 100,000 eligible voters. Most of these eligible voters have no difficulty in providing ID that proves who they are, but they are challenged to produce documentation that proves their current residential address.  Expanded use of the voter information card could remedy this, but Bill C-23 as currently drafted would disallow any such use.

Here’s the thing: a large number of irregularities did occur, but there is no evidence whatsoever that any voters fraudulently misrepresented themselves in the vouching process.

There is only evidence that the current voting process model needs an urgent administrative re-design and significant modernization.  Our current model has served us well since Confederation, but it must be re-engineered to function in a way that measures up appropriately to 21^st Century expectations of what “universal and equal suffrage” should mean.  It needs to be re-designed in a way that permits temporary election officers to easily perform their role in a fully compliant manner.

For the past 33 years, I have worked on planning, organizing and conducting elections in Canada and around the world.  I have performed this work in places as diverse as South Africa, Guyana, Libya and Russia.  My interest has always been to ensure the fundamental rights people have to participate in free and fair electoral processes are upheld.  My principal goal today has been to offer clarification with respect to what I wrote in my report on compliance during the 2011 general election.  In that light, I believe it is clear that parts of Bill C-23 require careful reconsideration.

Thank-you.  I will be pleased now to answer any questions that Members of the Committee may have.

For further reading, here is Samara’s full submission to the committee and here is James Di Fiore apologizing for securing multiple ballots in 2004, a story that was referenced earlier this month by Conservative MP Scott Reid.

See previously: Further reading on the Fair Elections Act