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The Evolution of the Duties to be Fulfilled by Poll Staff with Regards to Registration and Voting on Polling Day and Advance Polling Days, 1920 to 2012

Note to the Reader

This paper was prepared by Louis Massicotte, Professor, Department of Political Science, Universitι Laval, for Elections Canada. The observations and conclusion are those of the author and do not necessarily reflect the opinion of Elections Canada.

Introduction

This report provides a description of the legislative evolution of the duties that poll staff are required to fulfill on polling day and advance polling days as they relate to registration and voting requirements. It also includes an analysis of these changes, including the socio-political context surrounding each legislative change, and an assessment of the legislative changes from the perspective of the elections worker. The focus is on the complexity of these requirements and the demands they impose on poll staff. The starting date for the research is 1920.Footnote  1

Methodology

1. The Election Officers Covered in this Study

The Canada Elections Act provides a detailed description of how polling operations must be carried out in polling stations. In many ways, the Act reads as a manual of procedure, outlining which tasks must be accomplished and by whom. Until 1993, only two officers were involved in polling operations: the deputy returning officer (DRO) and the poll clerk.

A new election officer, the revising officer, was added in 1993, and since 1996 has been known as the "registration officer". This was necessitated by the introduction of a new mechanism aimed at facilitating the vote. Until then, in urban areas at least (a more liberal procedure prevailed in rural areas), an elector whose name was not on the list of electors at a certain date before the election could not vote: the list had been closed. Following complaints from the public – and fear of a challenge under the Canadian Charter of Rights and Freedoms against the discriminatory character of the rural/urban distinction – the possibility for electors to register on polling day was made available for urban electors as well.

Registration officers are appointed by the returning officer for "registration desks". They are not present in all polling stations. They can typically be found in central polling places, and are generally absent in single or dual ones. Like DROs and poll clerks, they are appointed on the basis of suggestions provided by parties that came first and second in the electoral district in the previous election. In 2011, 17,551 registration officers were appointed, while there were 70,890 polling stations.Footnote  2 Elections Canada reports that 84% of polls had a registration officer in 2011.Footnote  3

These three officers are not the only persons who may be present on a continuous basis in polling stations. Subsection 124(1) empowers returning officers, subject to the approval of the Chief Electoral Officer, to appoint in central polling places an "information officer" and a "person responsible for maintaining public order". The latter were formerly known as "constables". In addition, a central poll supervisor may be appointed by the returning officer in a central polling place. In 2011, central poll supervisors were available for 84% of polls.Footnote  4 If needed, interpreters may be appointed by DROs under section 156. However, none of these officers have to deal directly with electors when they register or when they cast their ballot, and none is involved directly in the counting of the votes. This is why they are not covered by this study.

The Act also allows for the presence of candidates and their agents in polling stations, but these are not election officers. They are empowered only to sit at the polling station and to oversee both the poll and the counting of the votes.

2. The Starting Point: The Dominion Elections Act of 1920

Though election legislation in Canada dates back to Confederation itself, selecting 1920 as the starting date for this review can be easily justified. The passage on July 1, 1920, of the Dominion Elections Act was a very important date in the history of elections in Canada. The 1917 election, held in wartime, with conscription as the main issue, had left scars in the Canadian polity, because the incumbent government had skewed the rules in advance so as to enhance its chances of being returned. Women had been enfranchised, but only those women who, as relatives of soldiers, were expected to support conscription. Canadians originating from countries with which Canada was at war had been temporarily disfranchised if they had been naturalized less than 15 years before the election. As Norman Ward put it, "the wartime franchise of 1917 could hardly fail to return a majority in Parliament for the party which enacted it".Footnote  5

The chief innovation of the 1920 Act was the creation of the office of the Chief Electoral Officer of Canada, to act as a neutral referee with regards to the electoral process. Still today, from a worldwide perspective, this move ranks as a key contribution to the development of neutral electoral practices, as it distanced the general supervision of the electoral process from the government of the day. The name of the first Chief Electoral Officer, Colonel Oliver Mowat Biggar, was set out in the Act itself, and it is only in 1927, following Biggar's resignation, that the present mechanism of appointing the Chief Electoral Officer through a resolution of the House of Commons was adopted. Though no supermajority is required for this resolution, there is no record of any opposition in the House to the five appointments made since then (1927, 1949, 1966, 1990 and 2007).

The 1920 Act included other innovations. The franchise and the preparation of the lists of electors, which had swung from the provinces to the federal government and back in earlier decades, became a federal responsibility once and for all. Property requirements were abolished and women, who had been enfranchised in toto two years earlier, had the right to vote, which means that the first general election conducted under the 1920 Act was also the first one to be held under universal suffrage. Other innovations of the Act: advance polls and the obligation for employers to provide time off for employees to vote.

3. The Evolution of the Act from 1920 to 2012

The legislative history of the Dominion Elections Act (see Appendix 1 for details) can be summarized as follows. The Act was first revised in 1927 as part of the general revision of statutes, which involved no change of substance other than eventually a renumbering of sections. In 1934, Richard Bennett's Conservative government decided to create the office of Dominion Franchise Commissioner, and the registration of electors became regulated by a distinct statute known as the Dominion Franchise Act. The other provisions were re-enacted as the Dominion Elections Act, 1934. Following the 1935 general election, these innovations were not found to be appropriate. Three years later, the office of Dominion Franchise Commissioner was abolished, and the Dominion Franchise Act was repealed. The provisions dealing with the franchise and registration came back to the Dominion Elections Act, 1938, to be implemented by the Chief Electoral Officer.

In 1951, the Act was renamed the "Canada Elections Act",Footnote  6 because the word "Dominion" was viewed as a relic with colonial connotations incompatible with Canada's status as a sovereign country, and the Act was revised in 1952 as part of the general consolidation of federal statutes carried out that year. A brand new statute was adopted in 1960, though the substantial innovations it included were mainly to extend the right of electors, hitherto described as a "privilege", to vote at advance polls. There was a new wholesale revision in 1970, which also coincided with the general revision of statutes carried out that year. The Act was again revised in 1985 within the general revision of statutes. Another wholesale revision of the Act took place in 2000, and remains the most recent one on record.

In short, in addition to the revisions carried out in 1927, 1952, 1970 and 1985 as part of the general consolidation of federal statutes, brand new Election Acts were passed in 1920, 1934, 1938, 1960, 1970 and 2000.

To this must be added dozens of amending statutes that were adopted between each revision, some of them introducing major innovations. As indicated in Appendix 1, not all of them affected the duties of DROs and poll clerks. One can cite, for example, the 1960 amendment that removed the disqualification barring "every Indian [...] ordinarily resident on a reserve",Footnote  7 passed just before the new version of the Act in order to highlight its own symbolic importance; the Election Expenses Act of 1974; or the amendments of 2003 that revamped the rules on the financing of political parties. This study focuses on the 20-odd amendments that specifically affected the duties of election officers. Three of them deserve specific mentions: the 1977 amendments, which did much to modernize the Act; the 1993 amendments (Bill C-114) which followed the publication in 1992 of the report of the Royal Commission on Electoral Reform and Party Financing (the Lortie Commission); and the 2007 amendments, which tightened the requirements for the identification of electors.

4. The Process for Amending the Act

No specific procedure is imposed by the Standing Orders of the House of Commons for amending the Act. A bill for that purpose is passed the same way as any public bill. Both the government and private members may introduce such bills. Private members' bills stand little chance of being adopted, but there are some instances of success. In 1996, a bill (C-243) dealing with the reimbursement of election expenses of registered parties, sponsored by Ian McClelland, a Reform Party member of Parliament (MP) from Alberta, was adopted. The introduction of variable voting hours in 1996 was inspired in part by a private member's public bill (C-307) introduced by Anna Terrana, a Liberal MP from British Columbia.

Bills sponsored by the government of the day for amending the election legislation may be presented without any prior consultation with MPs. This seems to have been the case for the two bills that enacted in 1934 a new franchise and election legislation. From 1936 onwards, in order for private MPs to be able to provide input on the legislation prior to its introduction, the House of Commons generally proceeded in the following way: A special House committee was instructed to examine various issues pertaining to election legislation. The committee sat and heard the Chief Electoral Officer, focusing on the latter's recommendations and proposals, based on the experience of the most recent election. Eventually, private members' bills dealing with election legislation could be referred to this committee. Other witnesses than the Chief Electoral Officer could be heard, and various suggestions from the public were considered as well. Then, the committee came up with a report detailing its own recommendations, sometimes couched in legal language in a draft bill. Later on, the government introduced its own bill based on the committee's recommendations. This process was followed notably in 1936–38, 1947, 1951, 1955, 1959–60, 1968–70 and 1977; from 1955 onwards, the legislative forum selected was the House of Commons Standing Committee on Privileges and Elections instead of a special committee struck for this purpose.

The reforms of 1993 followed the work of the Royal Commission on Electoral Reform and Party Financing chaired by Pierre Lortie. The Royal Commission started its work in late 1989 and tabled a massive report in January 1992. This report was examined by the House of Commons Special Committee on Electoral Reform, chaired by MP Jim Hawkes. In 1993, the committee came up with specific recommendations that formed the basis of Bill C-114, a government bill. Bill C-63, which created in 1996 a permanent register of electors and introduced new voting hours, was not inspired by a House committee report; it was instead introduced by the government of the day at its own initiative, though Elections Canada had done preparatory work on this topic. The revision of the Act in 2000 (Bill C-2) was preceded by numerous sittings and specific recommendations from the House of Commons Standing Committee on Procedure and House Affairs, which derived inspiration from the Lortie report and from statutory reports from Chief Electoral Officer Jean-Pierre Kingsley. Bill C-31 (2006–2007), which introduced identification requirements for electors, came after a recommendation from the Standing Committee on Procedure and House Affairs in June 2006. Bill C-18 (2007–2008), which completed Bill C-31 on the same topic, was introduced by the government following informal consultations with opposition MPs.

5. Research Strategy Adopted

It was not useful to simply examine what the law said each time. The best strategy was to summarize the duties of DROs and poll clerks in 1920 and 2012 respectively, taking into account the addition of revising/registration officers in 1993, and to trace the origin of the new duties that were added (or the date when some duties were abolished) over time. Though it arguably serves little purpose to single out duties that were created after 1920 but were abolished before 2012, like those necessitated by the availability of proxy voting for some 23 years, they are mentioned as well, if only to provide a complete picture. The purpose of this research is not to chronicle every change to the Act brought between 1920 and 2012, but rather to compare the duties to be fulfilled by election officers in 1920 and 2012.

Part I details the changes that were brought to the duties of polling staff between 1920 and 2012. For the sake of clarity, the duties in ordinary polling stations are distinguished from those in advance polling stations. The former have been divided into three components: duties to be fulfilled before the opening of the poll, duties to be accomplished during the hours the polling station is open to the public, and duties with regards to the counting of the vote. Duties to be performed in advance polling stations are dealt with separately. For advance polling stations, the same operations must be carried out except as otherwise provided for, and the chief differences have to do with the duties to be accomplished when the advance polling station is suspended and re-opened.

Information on the background and rationale of each innovation is available for changes brought since the 1970s. From the late 1970s, Chief Electoral Officer Jean-Marc Hamel issued statutory reports that assessed the applicability of the Act during the previous election, and suggested changes to the Act. Not all of them were implemented, of course (for example, successive Elections Canada's recommendations with regards to the appointment of returning officers remained dead letter until 2006), but there is no doubt that such reports – which came from the agency that supervised the electoral process and were made after extensive consultation within the organization and at the grassroots level with returning officers and poll staff – provided valuable input for the decisions made by MPs.

Sources are sketchier for the decades before 1970. The meeting minutes of the various committees – i.e. the Standing Committee on Privileges and Elections, or the special House committee struck for that purpose – provide some insight, as do records of the debates in the House of Commons on the legislation.

Over the course of this study, this author came to realize that the sheer enumeration of the detailed duties of election officers, though instructive, provides an incomplete picture of the amount of work they had to do. Consideration should also be given to the number of hours they had to devote to these tasks, and also to the number of voters they had to deal with. Fortunately, detailed statistics are available that shed light on the workload of election officers. They are presented in Part II, which tries to assess the actual workload of polling staff.



Footnote 1 The author wishes to thank Elections Canada staff for their comments on a preliminary version of this report.

Footnote 2 The first figure is from the Report of the Chief Electoral Officer of Canada on the 41st General Election of May 2, 2011, p. 53; the second is from the Official Voting Results for the Forty-First General Election 2011, Table 1.

Footnote 3 E-mail from Alain Pelletier, Acting Director, Policy and Research, Elections Canada, to the author, January 24, 2013.

Footnote 4 Ibid.

Footnote 5 Norman Ward. 1950. The Canadian House of Commons: Representation. Toronto: University of Toronto Press, p. 227.

Footnote 6 For ease of reading, the full titles Canada Elections Act and Dominion Elections Act are used only for citation or clarification purposes. "Act" is used as the short form for both titles, while also denoting the legislation as a whole.

Footnote 7 Canada Elections Act, R.S.C. 1952, c. 23, s. 14