Report of the Chief Electoral Officer of Canada on the 40th General Election of October 14, 2008
3. Key Issues
Elections Canada's mandate includes not only conducting elections but also administering the political financing provisions of the Canada Elections Act, monitoring compliance and enforcing electoral legislation, and conducting voter education and information programs.
To fulfill its mandate effectively, Elections Canada depends on a working relationship with political entities and other stakeholders in the electoral process. It must also work closely with Parliament, which determines the rules governing the electoral process.
Elections Canada has identified three areas of the electoral process that it believes merit Parliament's attention because of the difficulties encountered in the 40th general election:
- administrative processes
- voter identification requirements
- political financing rules
For each of these areas, this section examines some of the challenges presented by the current legal environment and process, in terms of Elections Canada's strategic objectives of trust, accessibility and engagement. The section also describes Elections Canada's efforts, within its mandate, to address these issues during the 40th general election.
Elections Canada is conducting post-event evaluations related to each of these areas, and expects to provide recommendations to Parliament in a future report.
3.1 Administrative Processes
The Canada Elections Act explicitly defines the voting process, and the roles and responsibilities of returning officers and each type of election officer. The Act also identifies specific dates by which some activities must be carried out. For example, a notice of confirmation of registration must be sent to all electors on the voters list no later than 24 days before election day.
These provisions are intended to preserve the fairness and integrity of the electoral process, and ensure that electors across the country enjoy a uniform standard of service. However, this rigorously defined approach can limit Elections Canada's ability to recruit and train staff, and to bring the voting process into line with Canadians' expectations.
Setting up local Elections Canada offices
To set up their offices, returning officers must complete an extraordinary number of tasks in the first days after the issue of the writs (see Section 2.1, Launch of the Election), including signing a lease, ordering furniture, installing up to 25 telephone lines and computers, and bringing on board office staff so they can begin to offer service to candidates and electors. For example, everything must be in place so that electors can vote by special ballot as soon as the writs are issued. Any delay in these key set-up tasks has an impact on downstream activities, such as confirming polling sites and mailing voter information cards. While some infrastructure set-up activities can be completed prior to the call of the election, there is little flexibility for returning offices, sub-offices and polling sites themselves to be formally confirmed or leased before the issue of the writs. This may compromise service to electors and candidates, and sometimes results in exorbitant rental costs. It also increases the difficulty of providing adequate information technology infrastructure.
Returning officers cannot order furniture to be delivered or phone lines to be installed until they have signed a lease and have gained access to the premises, and before anything else a thorough cleaning may be necessary. Depending on the delivery schedule, computers and telephones might arrive before the furniture, with the result that business must be conducted in a virtually empty office.
Elections Canada continues to work with the main telecommunications companies to modify and improve the processes used to install phone lines. The result was faster installation of field telephony in the 40th general election than in the previous one, but we still did not always meet our requirement of becoming fully operational within the first week of the election. Elections Canada is investigating the use of newer telecommunications technologies that could greatly reduce the time required for the set-up and installation of telephone systems in returning offices.
Recruitment and retention of field staff
As in previous elections, returning officers identified the recruitment and training of poll officials as their biggest challenge in the 40th general election. Finding qualified resources for the hundreds of positions to be filled in each electoral district is increasingly difficult in the time available. Furthermore, the increasing complexity of the voting process makes training these key staff more and more challenging, potentially leading to high turnover. The challenge persists right up to polling day, and the lack of dependability of some poll officials – albeit a small minority – was the primary reason some polls opened late on election day in the 40th general election.
Prior to hiring poll officials, the Act requires returning officers to first contact the candidates representing political parties that placed first or second in the previous election and obtain from them lists of suitable persons for the positions of deputy returning officer (section 34 of the Act), poll clerk (section 35) and registration officer (section 39). Section 36 of the Act prohibits returning officers from filling the positions with individuals not named on these lists until 17 days before election day. However, the proportion of poll workers identified by candidates fell from 42 percent in the 39th general election to 33 percent in the 40th. The figure was only 3 percent in British Columbia, and only 2 percent in Alberta. It may be necessary to review this provision so that returning officers can start earlier on critical activities.
Recruits for these roles may be daunted by some of the working conditions they face. For example, work on polling day goes on for 15 hours, with no designated time for lunch or breaks. The Federal Elections Fees Tariff sets the pay for the training session at $35, occasioning many complaints from participants. Furthermore, the pay rate for each position is not sufficiently attractive, especially in central and western Canada.
Field staff are expected to learn an increasingly complex set of voting procedures in a single three-hour training session. Even those who have worked previously in an election will find that new legislation requiring voters to prove their identity and residence, along with all of the associated exceptions and special cases, is a challenge. Some workers leave during the training session or resign afterwards. It is difficult to increase the training period given the already daunting challenge of recruiting and training so many workers in such a short time.
In view of the increasing difficulty in recruiting and training election officers and their ever-expanding responsibilities, the Chief Electoral Officer authorized some electoral districts to pay amounts higher than those prescribed in the Tariff of Fees and conduct additional advertising for positions at the outset of the election period. However, these are short-term solutions. A longer-term effort to address the challenge might include the following avenues:
- Provide more flexibility in terms of the allocation of staff and the tasks assigned to specific workers at the polls – for example, assigning the task of verifying voter identification to a specific worker. This approach is already used in some cases; for instance, the registration officer has to be trained only for a single process. The approach could also allow Elections Canada to examine options such as cross-training and dynamic allocation of tasks at the polls, based on voter demand, so as to improve the flow of traffic at the polls and offer better service to voters.
- Increase payments to poll officials under the Tariff of Fees.
- Allow returning officers to begin the appointment and training of election workers earlier in the election period.
- Further encourage the hiring of 16- and 17-year-olds for some specific positions, such as information officers. Recruitment of young Canadians might also further encourage them to participate in future elections.
However, some of these initiatives would require changes to the Act.
The Canada Elections Act sets out specific duties for the five types of poll workers:
- A central poll supervisor prepares and manages all of the tasks and activities at a polling site, and can be appointed only at sites that contain at least four polling stations.
- A deputy returning officer oversees the voting at a specific polling station, including voter registration, verification of proof of identity and residence, and issuing and receiving ballots.
- A poll clerk assists the deputy returning officer and completes the list of electors who have voted; the list is made available to candidates' representatives each half-hour.
- An information officer assists voters by providing general information and guidance to electors, including to which polling station they should go and what the requirements are for proof of identity and residence. Information officers may be appointed only for central polling places, that is, where there are at least two polling stations within a polling site.
- A registration officer registers electors whose names are not on the lists of electors on polling day, at a polling site.
No matter how many electors receive services at a particular polling site, the voting process centres on the individual polling station and the voting operations are managed by the deputy returning officer responsible for that station.
Each officer's duties are strictly defined and no position can replace another. The one exception is the poll clerk, who can perform the duties of the deputy returning officer if that position is vacant or the incumbent is unable or unwilling to act. This does not mean, however, that the poll clerk takes over those duties if the deputy returning officer is absent for a brief time. In that situation, voting must be suspended until the deputy returning officer returns.
Under the Act, the number of central poll supervisors and information officers depends on the number of polls in a polling site. While this provision sets a uniform standard of service, it lacks the flexibility required to properly serve electors and accommodate situations that commonly arise in polling sites.
On advance or ordinary polling days, voters tend to arrive in waves – for instance, before and after work or on the lunch hour. As people move through the voting process, it often happens that information officers are busy first, then poll clerks and registration officers, but none will necessarily be busy at the same time. Furthermore, one polling station within a polling site may be considerably busier than another – especially if a bus arrives filled with electors coming to vote at the same polling station. In that situation there may be a long lineup at one poll, while workers stand idle at other polls.
Elections Canada is examining a model used in the 2008 municipal elections in New Brunswick, where teams of election officers provided voting services to all voters at a specific polling site, regardless of the polling station to which a voter was assigned within the site. For example, dedicated voter list officers struck electors from the voters lists and gave each elector a ticket for a ballot; voters could then vote at any polling station within the site. This approach provided better service to electors and addressed some of the challenges involved in training workers for increasingly complex tasks.
3.2 Voter Identification at the Polls
From 2007 to the 40th general election
The new identification provisions require electors to prove their identity and residence before they are given a ballot, and set out the various ways for electors to provide the necessary proof (see Section 1.1, Changes to Legislation). Because not all electors have complete civic addresses or the documentation needed to prove their residence, the provisions have been amended. If an elector shows a piece of identification on which the address is consistent with information contained in the list of electors, Elections Canada is now able to deem that the person has established his or her residence.
Elections Canada developed a rigorous process to verify the identity and residence of electors, and training sessions for election workers all included a component on the manner in which this verification was to be conducted. However, the requirement for electors to prove their identity and residence represented a significant change to the voting procedures. It affected voters' experience at the polls, election workers' roles, and our training, communications and outreach activities.
Criteria for acceptable identification
The Canada Elections Act allows voters three ways to prove their identity and residence before they are given a ballot on polling day or during advance voting:
- They can provide one original piece of identification, issued by any level of government in Canada or an agency of that government. This must show the elector's photo, name and address.
- They can provide two original pieces of identification from a list authorized by the Chief Electoral Officer of Canada. Both must show the name of the elector, and one must also show the elector's address.
- They can swear an oath and be vouched for by an elector whose name appears on the list of electors in the same polling division and who has acceptable identification.
List of pieces of authorized identification
While Bill C-31 – the legislation introducing the new voter identification requirements – was before Parliament, Elections Canada undertook a preliminary study of identification documents. To assess the impact of the proposed identification rules, we examined the experience in other jurisdictions in Canada, including at the municipal level. One of the key findings was that very few documents issued by governments, apart from a driver's licence, provide photo, name and address, as required under the first option for identification. In addition, while a number of cards establish a person's identity by providing name and photo, or name and signature, or name and date of birth, few cards include the person's address. That information most commonly appears on documents such as utility bills. To allow eligible Canadians to exercise their right to vote, the findings indicated that the list of pieces of identification authorized by the Chief Electoral Officer would need to be fairly broad.
In March 2007, while Bill C-31 was still before Parliament, the Chief Electoral Officer sought the views of the House of Commons Standing Committee on Procedure and House Affairs and of the Advisory Committee of Political Parties (ACPP) on a proposed list of acceptable pieces of identification.
A few weeks after Bill C-31 received royal assent on June 22, 2007, three by-elections were called for September 17, 2007. Given the two-month time frame for implementing the bill, Elections Canada established a closed list detailing 44 pieces of identification and original documents. After consulting with the ACPP, a list of pieces of identification authorized by the Chief Electoral Officer was published in accordance with the new rules. The same list was used for a second time in four by-elections held on March 17, 2008.
During the 40th general election, one change was made to the list of acceptable identification: the addition of hospital bracelets for residents of long-term care facilities.
Rose Henry et al. v. Canada (Attorney General)
On January 30, 2008, an action was filed in the Supreme Court of British Columbia by individuals and groups challenging the constitutionality of the new identification and vouching requirements in the Canada Elections Act. The applicants assert that the requirements will prevent electors from exercising their right to vote, as guaranteed by section 3 of the Canadian Charter of Rights and Freedoms. An amended statement of claim was filed at the end of November 2008. The case is scheduled to be heard in June 2009.
Evaluations prior to the 40th general election
Elections Canada evaluated the implementation of voter identification for the seven by-elections held after the adoption of the new identification requirements and before the 40th general election. The evaluation involved public opinion surveys and surveys with election officers.
Survey results indicated that the implementation of the new voter identification requirements went smoothly overall. Over 90 percent of electors were aware of the new requirements and had a positive attitude toward the idea of proving their identity. Over 94 percent of voters indicated that they found the new requirements easy to meet. Some respondents said they did not vote because they lacked proper documentation (4 percent). A similar proportion of respondents (4 percent or lower) indicated that they did not have the required documents when they arrived at the polls. While most of them returned home to retrieve their identification or swore an oath and were vouched for, 0.5 percent finally did not vote.
The results from respondents in the northern Saskatchewan electoral district of Desnethé–Missinippi–Churchill River were an exception to these trends. Only 75 percent indicated that they were aware of the new provisions and also felt positive about the requirements to prove their identity and residence. Also, the proportion of electors without the required documents increased to 10 percent in this riding.
A detailed account of the results of the surveys carried out after the by-elections can be found on the Elections Canada Web site at www.elections.ca.
Anecdotal reports from election officers indicate that meeting the identification requirements was particularly challenging for some population groups, including Aboriginal people living on reserves and seniors in long-term care facilities.
Consultations prior to the 40th general election
In spring and summer 2008, Elections Canada consulted with representatives of several communities of electors that might face challenges in meeting the new voter identification requirements, such as northern Canadians, seniors and residents of long-term care facilities, students and homeless persons. The consultations aimed to:
- identify specific barriers to voting that the communities might face because of the new identification requirements
- determine the effectiveness of the list of identification documents
- determine the best way for Elections Canada to provide information to the communities on the new requirements
The consultations provided valuable insight into the issues and potential solutions associated with the new requirements. These views and recommendations are detailed in two reports that were produced in October 2008. They call for improvements to Elections Canada's operations and communications, as well as changes to existing legislation. The reports can be found on the Elections Canada Web site at www.elections.ca.
Issues faced by electors at the polls in the 40th general election
Our communications and outreach activities undoubtedly reached many electors, but there were still difficulties at the polls in the 40th general election.
Electors without required pieces of identification
We received anecdotal reports that some electors were unable to present pieces of identification and official documents that could prove their residence.
It appears that some electors relied on an attestation of residence (that is, a letter from the administrator of a homeless shelter) but were unable to supply an additional piece of identification as required. In some cases – especially in seniors' residences – guardians or family members assume responsibility for an elector's identification documents. These pieces of identification were not always readily available on voting day.
Similarly, residents in long-term care facilities often no longer carry acceptable identification. For this reason, the Chief Electoral Officer expanded the list of acceptable identification documents to include bracelets issued by these facilities, provided the elector was wearing the bracelet when voting.
By law, the deputy returning officer of each polling station is responsible for all aspects of voting and handling of ballots, including the voters list, verification of identity, the voting process itself and the counting of ballots after the polls have closed. The new voter identification requirements have added greater complexity to the rules that deputy returning officers must administer.
For the 40th general election, the training provided to deputy returning officers and poll clerks proved more challenging than ever before. Participants had to assimilate a great deal of information in a single three-hour session. Some trainees reported that even trainers had difficulty understanding the new provisions and procedures.
We received reports that the identification provisions were applied inconsistently at the polls. Anecdotal evidence suggests that, with the limited training provided, it may have been unrealistic to expect poll workers to recognize and process 46 different pieces of identification and official documents.
Some poll officials also were reluctant to turn away people within their community whom they had long known simply because these electors did not have the required identification proving their residence.
Voter information card
Our evaluations of the by-elections indicated that the majority of voters kept their voter information card and brought it to the polls. A significant proportion of voters said that they presented the card as proof of their identity (18 percent in 2008 and 5 percent in 2007). To their understanding, the voter information card could be used to prove identity. This perception was confirmed by the results of surveys conducted among election officers after the by-elections.
To ease the flow of voters at the polls, Elections Canada encourages poll officials to ask for the card when the elector appears at the polls. This could have created the impression that electors may use the voter information card to establish their identity. According to anecdotal information from Elections Canada staff, in some cases voters thought that they could use their voter information card because it contained their name and address and had been issued by a government agency. In fact, both voters and poll officials questioned why the card could not be used to establish identity since this was the only document produced and issued to individual electors by Elections Canada.
This does not mean, however, that voters were able to cast their ballot by showing only their voter information card as proof of identity. The overwhelming majority of voters (98 percent in 2008) reported having also used another piece of identification.
Elections Canada is evaluating the implementation of the new voter identification requirements in the 40th general election. Once the evaluation is complete, Elections Canada may consider the possibility of including the voter information card on the list of pieces of identification authorized by the Chief Electoral Officer.
Confusion about procedure
Some electors did not understand why certain types of identification were not sufficient. In the case of passports, for example, many electors did not appreciate that the issuing authority does not include address information, which is frequently filled in by hand by the passport holder.
Some electors complained that it was redundant to require that they prove their identity and residence after they had made a verbal declaration. They also noted that they could have been overheard by people who were not under oath to protect the privacy of their information.
Seniors were upset at having to show identification documents proving their residence when they were voting at a mobile poll set up in the long-term care facility where they lived.
Attestations of residence
Some electors could not provide any proof of residence. Examples included persons residing in homeless shelters, student residences and long-term care facilities, or on Aboriginal reserves. In these cases, the elector could request an attestation of residence from the administrator of the facility where that person lived, confirming the elector's place of ordinary residence. This provision offered many electors the opportunity to vote but also gave rise to several issues:
- The task of completing and signing attestations proved burdensome for many administrators of student residences and long-term care facilities.
- There was some confusion about how to provide the attestation of residence. In one case, a returning officer was given the entire list of persons living in a university's student residences. This raised privacy concerns.
Elections Canada is evaluating the implementation of the new voter identification requirements. With the findings from the evaluation as well as the consultations preceding the 40th general election, we expect to be able to identify administrative improvements that Elections Canada can make or propose to Parliament.
3.3 Political Financing and Third Parties
In any electoral event, many of the candidates and their agents will be working with the political financing rules for the first time. Even seasoned agents and those backed by well-established political parties must deal with changes and unforeseen situations.
Recent legislative changes have increasingly restricted campaign financing. The Federal Accountability Act made individuals the only eligible class of contributors to election campaigns and further decreased contribution limits; the 40th general election was the first under these new rules. This legislation also created a new requirement for reporting gifts to candidates.
As candidate and political party returns are submitted and reviewed by Elections Canada, a clearer picture will emerge of the challenges faced by candidates and their official agents, as well as political parties. Already, however, some issues have arisen that well illustrate the complexity of the political financing rules, including restrictions on advertising by third parties.
An issue that arose once again during the 40th general election was whether a candidates' debate not open to all candidates constituted a contribution by the debate organizers to the participating candidates. This question is not entirely new, and Elections Canada has not changed its position: A forum for debate that is open to the public to allow it to hear and question registered parties or candidates will not constitute a contribution to any registered party or candidate provided that it is not restricted to participation by one registered party or the candidates of one registered party, and that it is conducted in a politically neutral fashion. This issue may require greater statutory clarification.
Several messages by third parties attracted attention during the election, and some of them raised questions about the distinction between what constitutes election advertising and what does not. Another issue was whether the Internet has changed traditional distinctions between advertising and programming or news.
A number of application issues and difficulties have emerged since the 39th general election in the administration of the political financing provisions of the Act. Among these are the definitions of various expenses and election advertising. The new technological means of transmission raise new questions with regard to election advertising. The Act also sets out a number of complex administrative procedures that impose a heavy regulatory burden on political entities. These issues need to be analyzed further and may require some legislative amendments.
Elections Canada provides tools to political entities to help them with political financing, and offers training to prepare them for an election and the follow-up activities. An example was the training offered to official agents at locations across Canada in October and November 2008 (see Section 2.2, Working with Political Entities).
In fulfillment of the strategic objective of trust, our Strategic Plan 2008–2013 pledges that Elections Canada will "maintain and strengthen the recognition among . . . participants in the electoral process that we administer the Canada Elections Act in a fair, consistent, effective and transparent manner." In fulfillment of the strategic objective of engagement, the Plan pledges that Elections Canada will "work more collaboratively with parliamentarians and political parties in further strengthening the electoral process."
Addressing the issue of political financing under the Act is an opportunity to accomplish both these objectives. In addition to our own evaluations, we need to receive input from the people directly involved in political financing, to know the obstacles they face in complying with the Act. This will help us identify the changes that might remove the obstacles, without compromising the essential fairness and transparency required by Canadians. Elections Canada expects to present recommendations on political financing in its next report to Parliament.
Pre-election spending on advertising
Both electors and political parties raised concerns about the mailing of flyers (commonly called "householders") by several members of Parliament immediately before or after the issue of the writs.
Under House of Commons rules, members of Parliament can send householders to constituents four times a year. The commercial value of parliamentary material that promotes a candidate will be considered an election expense under section 407 of the Canada Elections Act if the material is used during an election period.
A technical question arises concerning whether householders in transit at the time of issue of the writs constitute election advertising. Elections Canada considers that a householder that is in transit before the issue of a writ and has reached the stage where the member of Parliament no longer has the ability to stop its delivery prior to the issue of that writ will not be considered to have been used during the election period even if its actual delivery to the recipient takes place during the election. By this interpretation, this householder would not be considered an election expense.
That said, some electors and parties have complained that householders sent immediately before the election call undermined the fairness of the electoral process by appearing to promote certain parties and members of Parliament as candidates during the election period.