Results, Validation, Recounts, and Contested Elections: What Happens After Voting in a Federal Election
Following the close of a polling station, the deputy returning officer in an electoral district counts the votes, in the presence of the poll clerk, any person appointed by the returning office who is to be present at the counting of the votes, and any candidates or their representatives who are present, or, if none are present, in the presence of at least two electors. Before the count, the deputy returning officer must, in the following order:
- count the number of electors who voted and enter the number in the poll book
- count the number of electors to whom a registration certificate was given
- count the spoiled ballots, place them in the envelope provided for that purpose, indicate the number of spoiled ballots on the envelope and seal it
- count the unused ballots, place them in the envelope provided for that purpose, indicate their number on the envelope and seal the envelope
- ensure that all ballots provided are accounted for
The deputy returning officer then empties the contents of the ballot box onto a table to proceed with the count.
During the count, the deputy returning officer examines each ballot, shows it to each person present and asks the poll clerk to tally the vote in favour of the candidate for whom the vote was cast. The poll clerk (along with any of the candidates or their representatives who also wish to do so) keeps a tally of the votes for each candidate.
The deputy returning officer must reject ballots that were not supplied by him or her, were improperly marked (including those voided by the elector), were cast for a person other than a candidate, or on which there is any writing or mark by which the elector could be identified.
The deputy returning officer keeps a record of every objection to a ballot made by any candidates or their representatives, gives a number to that objection, writes that number on the ballot and initials it. The decision of the deputy returning officer is subject to reversal only by a judge on a judicial recount or on an application to contest the election.
After the count, the deputy returning officer fills out a statement of the vote, recording the number of votes in favour of each candidate and the number of rejected ballots. In this statement, the deputy returning officer has to account for all ballots received at that polling station. The deputy returning officer then telephones the unofficial results to the returning officer, who makes them public immediately. The published results remain incomplete until all results have been transmitted by telephone by all deputy returning officers. Candidates or their representatives present during the count at a polling station have the right to receive a copy of the statement of the vote.
The envelopes containing the marked ballots, the spoiled ballots, the unused and the rejected ballots,are sealed along with any other election documents in a large envelope provided for that purpose. That envelope and the envelope that contains the copy of the statement of the vote are placed in the ballot box, which is delivered to the office of the returning officer. Four envelopes are delivered to the returning officer with the ballot box, namely the envelope containing the original statement of the vote, the envelope containing oaths taken by electors, the envelope containing copies of the documents produced at regular intervals on election day identifying electors who have voted and the envelope containing the registration certificate of electors who registered on polling day.
Validation of the Results
The validation of the results of a vote is done by a returning officer generally in the week following polling day. At a validation, the returning officer verifies the cumulative addition of the individual results recorded and reported by each poll on its statement of vote.
The returning officer validates the results in the presence of the assistant returning officer, and any candidates or their representatives or, if none are present, at least two electors. The date, time and place of the validation is indicated in the Notice of Election published by the returning officer at the beginning of the election. The validation may not proceed if the returning officer has not received all ballot boxes and the results of electors voting by special ballot. In those cases, the returning officer adjourns the proceeding for not more than seven days. If the missing ballot boxes have not been received on the seventh day, the returning officer may make further adjournments that do not exceed a total of two weeks. The Canada Elections Act contains specific provisions on how to proceed if a ballot box has been destroyed or remains missing.
The validation is done on the basis of the statements of the vote prepared by the deputy returning officers. If the statement of the vote is missing, appears to contain an error, appears to be incomplete or appears to have been altered, or is disputed by a candidate or his or her representative, the returning officer may open the ballot box to retrieve the copy of the statement that was placed in the box by the deputy returning officer on polling day. If the copy of the statement of the vote is not found or is not useful for resolving the issue, the returning officer may use the information that is written on the envelopes that contain the ballots.
During the validation, the returning officer must not open an envelope that appears to contain ballots; he or she cannot recount the votes, and cannot deal with any issues respecting irregularities at the poll.
Once validation has been completed, the certificate of the returning officer validating the result of votes is delivered to the Chief Electoral Officer and the candidates. On the seventh day following the validation, or as soon as possible after the completion of a judicial recount, the returning officer declares elected the candidate who obtained the largest number of votes by completing the return of the writ and transmitting the completed writ document to the Chief Electoral Officer. If there is an equality of votes between the two candidates with the largest number of votes, the returning officer indicates that fact on the election writ. In such a case, a by-election will need to be held.
The Chief Electoral Officer has no authority to correct or otherwise alter results that have been validated by a returning officer. The only review mechanisms open for validated results are a judicial recount or contested election application.
A judicial recount is a new tabulation of the votes cast for an electoral district, presided over by a judge of a superior court of the province or territory.
A judicial recount must take place if the leading candidates in an electoral district receive the same number of votes after the validation of the results, or if they are separated by less than one one-thousandth of the total votes cast.* For example, in an electoral district where 40,000 votes were cast, if the difference between the first and second candidates was less than 40 votes, a judicial recount would be required. The returning officer must make a request to a judge for a judicial recount and must also write to the candidates or their official agents to advise them of the recount request.
The judge must fix the date for a recount to begin within four days after he or she receives the request.
A request to a judge to carry out a judicial recount may also be made by any elector, including a candidate. Notice in writing must be provided to the returning officer in the relevant electoral district before a request may be made to a judge. The request must be presented within four days of the validation of the results and must include an affidavit stating that the count was improperly carried out, that ballots were improperly rejected or that the returning officer incorrectly added up the results at the validation. The applicant must deposit $250 with the court as security for the costs of the candidate who obtained the largest number of votes. If the judge agrees to proceed with a recount, it must begin within four days of the receipt of the application.
Judicial recounts deal solely with the tabulation and counting of votes. Concerns about fraud and irregularities in the electoral process are addressed through a contested election application.
Except with the permission of the judge, the only people permitted to be present at a recount are the judge, the returning officer, the staff appointed by the returning officer, the candidates,a maximum of two representatives for each candidate, one legal counsel for each candidate and legal counsel for the Chief Electoral Officer. A recount can be conducted in one of three ways: The judge can add the number of votes reported in the statements, recount the valid ballots or recount all of the ballots (including the spoiled and rejected ballots). The judge then totals the ballots cast for each candidate (according to the procedure chosen).
Except in the case of an automatic recount, a judge may at any time terminate a recount on request in writing by the person who applied for the recount.
At the conclusion of the recount, the judge delivers a certificate stating the results of the process and returns all election materials and election documents to the returning officer. If there is no tie vote, the returning officer writes the name of the winning candidate on the writ of election and returns the document to the Chief Electoral Officer.
The results of a judicial recount are final and cannot be corrected or altered by a returning officer or the Chief Electoral Officer.
All concerns respecting the regularity of an election – other than for matters that are handled through judicial recounts – are addressed through the contested election process. After a person is declared elected, any elector who was eligible to vote in a district or any candidate in that district may bring an application for a contested election before a judge.
In a contested election proceeding, a judge is required to determine whether the person who won the election was eligible to be a candidate or whether there were any other irregularities, fraud, or corrupt or illegal practices that affected the result of the election. The Chief Electoral Officer, along with the Attorney General, the relevant returning officer, the candidates in the election and the person bringing the application are all parties to a contested election proceeding. This is a court proceeding at the end of which the judge either dismisses the application or invalidates the result of the election.
An appeal from this decision can be brought to the Supreme Court of Canada.
* This is also called an automatic judicial recount.