VOL. 5 • NO. 1 • MARCH 2003

ELECTORAL www.elections.ca

ElectionElection LegislationLegislation EnforcementEnforcement

ElectronicElectronic VotingVoting MethodsMethods AA ProfileProfile ofof EllenEllen LouksLouks FaircloughFairclough Contents VOL. 5 • NO. 1 • MARCH 2003

1 Chief Electoral Officer’s Message 2 Election Legislation Enforcement 2 Enforcement of the Canada Elections Act Raymond Landry An overview of compliance and enforcement mechanisms at the federal level in Canada 7 Comparative Review of Penalties for Electoral Offences in Canada Marc Chénier and Alain Pelletier An analysis of various penalty schemes in Canadian jurisdictions

Co-editors 12 Election Law Enforcement: International Comparisons Oxana Sawka and F. Leslie Seidle Sue Nelson Publications Manager An examination of enforcement regimes in selected countries Francine Dalphond around the world

Managing Editor 18 Campaign Finance Enforcement in the United States Wayne Brown Rhonda J. Vosdingh and Lawrence L. Calvert Jr. A report on the enforcement process administered by the Federal Election Commission For more information, contact 26 Electronic Voting Methods: Experiments and Lessons Elections Canada: Telephone: 1 800 463-6868 Daniel Guérin and Asifa Akbar A review of recent developments in electronic registration and voting www.elections.ca in several countries including Canada, the United Kingdom, Australia and the United States © ELECTIONS CANADA 2003 ISSN 1488-3538 EC 91826 31 Ellen Louks Fairclough: Canada’s First Female Federal ALL RIGHTS RESERVED Cabinet Minister PRINTED IN CANADA Wayne Brown Her five successive election victories were unmatched by any other woman during her time and she introduced historic legislation giving Status Indians the right to vote

36 Electoral News in Brief Eleanor Milne, Chris Fairbrother and Marcel Joanisse The Vote (1979–1980) Elections Canada is the non-partisan Submissions of articles and photos that Indiana limestone, 121.9 x 182.8 cm, agency responsible for the conduct of might be of interest to Electoral Insight House of Commons, Ottawa federal elections and referendums readers are welcome, although publication cannot be guaranteed. If used, submissions The base stone of The Vote, a sculpture Electoral Insight is published by Elections on the east wall of the House of Commons will be edited for length and clarity as Canada three times a year. Electoral necessary. chamber, shows four heads with flowing Insight is intended for those interested in hair whose mouths shape, in song, the electoral and related matters, including Please address all contributions and letters first syllables of Canada’s national parliamentarians, officials of international to Wayne Brown, Managing Editor, anthem, “O-Ca-na-da”. and domestic electoral management Electoral Insight, Elections Canada, bodies, election officers and academics. 257 Slater St., Ottawa, Canada The opinions expressed are those of the K1A 0M6 ([email protected]). authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada. Chief Electoral Officer’s Message Election Legislation Enforcement

The method of enforcing election legislation is one of many elements that serve to strengthen democratic processes. Different systems have been developed based on particular values and cultures, and the circumstances existing at the time of their adoption. Their common and essential goal is to maintain public trust in the integrity of the process.

In Canada, while I am responsible for the administration of federal elections, the Commissioner of Canada Elections is responsible for the enforcement and prosecution of all offences under the Canada Elections Act. The Commissioner is selected and appointed by the Chief Electoral Officer under section 509 of the Act. Jean-Pierre Kingsley More information about his role and the multi-faceted approach used to ensure Chief Electoral Officer of Canada enforcement of the Act is contained in Raymond Landry’s article in this issue.

The new Canada Elections Act adopted in 2000 contained some changes that reflected the views of many, includ- ing myself, who had recommended decriminalizing certain offences under the Canada Elections Act. Nevertheless, it is important to ensure that the consequences for non-conformity remain relevant to ensure deterrence and serve to educate the public, and that the processes of enforcement remain shielded from political manipulation.

This issue of Electoral Insight surveys enforcement schemes adopted to effect compliance with electoral law in various jurisdictions. Criminal prosecution of offenders, imposition of civil fines and less stringent measures such as the conclusion of compliance agreements are among the provisions used. As will be seen from the various articles in this issue, a range of administrative and judicial bodies are responsible for applying these rules.

Every democracy is a social laboratory where processes are tested in real-life situations, and every nation must continue to strive to determine what works best to ensure the effective enforcement of its election law. In so doing, the experience of others can be instructive and contribute to the process of adaptation to changing circumstances.

As always, comments about this issue are welcome, along with suggestions for future articles.

Jean-Pierre Kingsley

March 2003 1 Election Legislation Enforcement

Enforcement of the Canada Elections Act

Raymond Landry Commissioner of Canada Elections

The contemporary electoral process in Canada is character- Section 509 of the Canada Elections Act provides that the ized by a number of checks and balances that dramatically duty of the Commissioner of Canada Elections is to ensure reduce the likelihood of widespread abuses, and by means that the Act is complied with and enforced.3 In carrying out for enforcement that act as a deterrent. At the federal his responsibilities, the Commissioner investigates possible level, the Commissioner of Canada Elections, an impartial breaches of the provisions of the Act and decides on the and independent official appointed by the Chief Electoral appropriate course of action to remedy the infraction. Officer, has the duty to ensure that the Act is complied with and enforced. Prior to the adoption of a new Canada Elections Act in 2000, the only enforcement tool, aside from automatic administra- This article presents an overview of the role and responsi- tive consequences for some acts or omissions, was prosecution bilities of the Commissioner of Canada Elections in the before a court of justice. The Commissioner of Canada federal election law enforcement scheme, and describes Elections had and still has exclusive responsibility for all the multi-faceted approach used to enforce the Act. prosecutions under the Canada Elections Act and prosecutions for electoral offences under s. 126 of the Criminal Code. Role and responsibilities of the Office of the However, the Canada Elections Act adopted in 2000 enhanced Commissioner of Canada Elections the compliance role of the Commissioner by providing him with two new tools: compliance agreements and injunctions, The adoption of the Election Expenses Act in 1974 led to about which further details are provided below. the creation of the Office of the Commissioner of Election Expenses, with statutory powers over the application of the Until 1993, the Royal Canadian Mounted Police, at the extensive new financial provisions of the Canada Elections Commissioner’s request, carried out investigations of Act.1 In 1977, the Commissioner was assigned responsibility alleged offences under the Act. A major change occurred for enforcement of all provisions of the Act, and the holder in 1993 when a national network of special investigators of the office was renamed the Commissioner of Canada was set up by the Commissioner to carry out investigations Elections.2 in the field, on his behalf and at his request. Currently, 26 special investigators are retained across the country. The Commissioner of Canada Elections is an impartial They carry out their investigations in accordance with the official selected and appointed by the Chief Electoral procedures and policies in the Special Investigator’s Manual. Officer (who is appointed by a resolution of the House This manual is published on-line to make public the rules of Commons and reports directly to Parliament). In under which investigations are performed, bringing fairness deciding on the proper course of action to deal with a and consistency to the process.4 complaint of an alleged infraction, the Commissioner is thus independent from politicians, political parties and In addition, the Commissioner is assisted in the performance the government. of his duties by legal counsel and chief investigators. When

2 Electoral Insight a decision to initiate a prosecution has the power to enter into compliance The existence of these statutory been reached by the Commissioner agreements; and, second, the ability to measures may have an impact on based on his review of the evidence seek an injunction during an election the course of action chosen by the uncovered during an investigation, a period. These new tools can act as Commissioner to deal with a complaint. lawyer in private practice, whose inde- much to prevent breaches of the Act In essence, the Commissioner’s respon- pendence from political activities has as to stop those breaches after the fact. sibility is to choose the most appropriate been determined, is retained in the tool at his disposal to deal effectively applicable region of the country to The mere act of intervening in an with a case of non-compliance. carry out the prosecution. election period, whether to seek an injunction or to enter into a compli- The power to seek an injunction The setting up of a network of special ance agreement in the hopes of Section 516 provides the Commissioner investigators as a substitute to request- avoiding a breach of the Act or the with the authority to apply to a court ing investigations by the RCMP, and commission of an offence, has itself for an injunction ordering any person the use of lawyers in private practice the potential of causing political con- named in the application to refrain to carry out the prosecution instead troversy. Resources may be diverted from committing any act that is pro- of relying on Crown attorneys, are from a campaign and reputations hibited, or to do any act that is required two elements that have enhanced called into question. In the considera- by the legislation. These new measures the independence of the Office of the tion of the exercise of his powers, the have been specially tailored to the Commissioner of Canada Elections. Commissioner must therefore be care- electoral process. These measures further remove any ful not to allow the complaint process possible political interference in the to become a political tactic. The Commissioner cannot himself discharge of his duties. issue an injunction. He is authorized A closer look at each of the elements only to apply to a court for such an Finally, it is worth mentioning that of the enforcement scheme is provided order. Further, he can do so only dur- the Commissioner of Canada Elections below. ing the election period, which can be normally defends the constitutionality as short as 36 days from the issue of of the offence provisions of the Canada Administrative incentives the writ to election day. Elections Act where a prosecution on The Act contains a number of pro- his behalf is filed in court, and defence visions that provide for automatic Before the Commissioner can apply counsel initiates a constitutional chal- statutory consequences to some acts or for an injunction, and before a court lenge of those provisions. Notice of omissions. These incentives (or disin- can grant that request, there must be constitutional questions must still be centives) exist to encourage political reasonable grounds to believe that a served, however, on the Attorney parties and candidates to act in con- person has committed, is about to General of Canada and the attorney formity with their legal responsibilities. commit or is likely to commit an act general of each province. It is important to note that the Chief or omission that is contrary to the Electoral Officer is responsible for the Act. Accordingly, while neither the Enforcement of the Canada administration of these measures, Commissioner nor the court need be Elections Act: A multi-faceted which include: satisfied beyond a reasonable doubt of approach • the statutory loss of a candidate’s the breach or potential breach, neither nomination deposit where the can act on mere speculation or whim. The enforcement scheme under the reporting requirements are not met There must be sufficient objective Act is multi-pronged, ranging from the after the election (s. 468) evidence to indicate that a breach application of administrative incen- • the loss of the second instalment of has been or will likely be committed. tives, to the initiation of criminal a candidate’s reimbursement of elec- prosecution. Although prosecution tion expenses where the reporting Before an injunction can be issued, remains the ultimate enforcement requirements are not met (s. 465) it must be justifiable in light of three tool, the Canada Elections Act adopted • the suspension of a registered politi- basic considerations: in 2000 gave the Commissioner two cal party that failed to provide its • the nature and seriousness of the new tools to effect compliance: first, annual fiscal report (ss. 386 and 387) breach

March 2003 3 • the need to ensure the fairness of conditions of the the electoral process agreement, no • the public interest prosecution can be instituted or These factors must all be considered continued against Photo: Photo: Philipe Landreville and balanced in light of the particular that person for the circumstances. act or omission constituting the The short period during which an offence. An injunction can be sought, namely the acknowledgement election period, imposes some very real of responsibility limitations on the practical exercise of in a compliance the power. Complainants are therefore agreement, unlike encouraged to provide all relevant and a guilty plea in a verifiable information available, as court of justice, soon as possible. Any delay in provid- does not result in Supreme Court of Canada ing such information can adversely a criminal record. affect the likelihood or ability of the Commissioner to seek an injunction To further the public interest, compli- The ultimate enforcement tool: within the statutory deadlines. ance agreements can be used to prevent the initiation of a prosecution the probable commission of offences, Although compliance agreements and Since the adoption of this new measure, thereby avoiding harm before it hap- the authority to apply for an injunction the required elements to justify the pens. Moreover, it also provides an provide the Commissioner with greater seeking of an injunction have not alternative mechanism for resolving a flexibility to enforce the Act, there been found to exist in any occurrence. complaint where there is no overriding remain instances where prosecution is public interest to be served by a prose- warranted. By virtue of section 511, The power to enter into cution, or where prosecution may have this avenue of redress is still open to compliance agreements been possible but not justifiable in the the Commissioner where he believes Another tool provided to the public interest. Finally, a compliance on reasonable grounds that an offence Commissioner in the 2000 legislation agreement, as an alternative to judicial under the Act has been committed is the authority to enter into a compli- intervention, serves to lighten the and is justified by the public interest. ance agreement, found in section 517 court system’s caseload. of the Act. Considerations that may come into In order to maintain transparency, play during an assessment of the public A compliance agreement is a formal notice of all compliance agreements interest include the necessity of agreement between the Commissioner entered into must be published. For maintaining public confidence in the of Canada Elections and another person this reason, a person who enters into fairness and effectiveness of the elec- known as a contracting party. It is a compliance agreement with the toral system, the need for general completely voluntary and contains Commissioner must consent to its deterrence, and the need for decisive terms and conditions that are mutually publication. Since the adoption of this action where the offence is of consid- acceptable to ensure compliance with new power, the Commissioner has erable public concern. Other factors the Act. The Commissioner may enter signed compliance agreements with may include the suitability of alterna- into such an agreement with any person more than 50 individuals and groups tive modes of enforcement and the who he has reasonable grounds to to resolve cases of offences under the presence of significant mitigating or believe has committed, is about to com- Canada Elections Act. A public notice aggravating circumstances. mit or is likely to commit an offence. for each of these agreements appears in the Canada Gazette and can be viewed The Commissioner’s written consent As long as the contracting party acts on the Elections Canada Web site at is required before a prosecution for an in conformity with the terms and www.elections.ca. offence under the Canada Elections Act

4 Electoral Insight can be initiated, pursuant to sec- The Act also sets out the level of intent integrity of the election process. Upon tion 512. In determining that reason- that a person must have in order to be conviction for these listed offences, able grounds exist to believe that an found guilty of a particular offence. automatic consequences that apply offence has been committed, the Some offences are strict liability offences for the next five years for an illegal Commissioner satisfies himself that where the fact of the occurrence is practice, and for seven years for a there is reliable, admissible and suffi- sufficient for conviction, unless a corrupt practice, are: cient evidence to prove that an offence person acted with due diligence. Other • loss of entitlement to be a candidate, was committed by a person or group offences require a mens rea of having or to sit in the House of Commons and that there is a reasonable pros- “knowingly” committed the prohibited • loss of entitlement to hold office in pect of conviction; as with all other act. This essentially means that the the nomination of the Crown or of prosecutions under a penal statute, person was aware of what he or she the Governor in Council proof means proof beyond a reasonable was doing but did not necessarily doubt. desire the prohibited result of those Loss of right to vote is no longer a actions. Finally, punishment for having being convicted some offences of an illegal or corrupt practice, as was The Act provides for specific ranges of require a level of the case before 2000. intent whereby the penalties for every offence that include person commits the A sentencing digest listing all individ- fines and prison terms. offence “wilfully,” uals found guilty of an offence under which essentially the Canada Elections Act is maintained means that the on Elections Canada’s Web site. Under section 510 of the Act, the person acted intentionally to achieve Chief Electoral Officer can direct the the prohibited result. Conclusion Commissioner, in specific circumstances, to make any inquiry that appears to Sentencing I have been Commissioner of Canada be required. This can occur when he The Act provides for specific ranges of Elections for a period of more than believes on reasonable grounds that an penalties for every offence that include 10 years. Since 1992, I have acted in election officer may have committed fines and prison terms. Penalties are that capacity for one national referen- an offence against the Act or that any proportional to the gravity of the dum, three general elections, and person has committed an offence under offence, and to the degree of intent 37 by-elections. the provisions listed in that section. required for the offence to occur. The However, the power to initiate courts have also been given greater Some movement towards decriminaliza- the prosecution remains with the flexibility in imposing alternative pun- tion during my time as Commissioner Commissioner. ishments in section 501, including: is consistent with my general observa- • a fine of up to five times the amount tion during the course of my work that Offences by which a third party exceeded the Canadians by and large want to act Since the electoral reform of 2000, limit on election advertising expenses in accordance with their statutory there is normally no longer a need to • community service responsibilities. Once informed that rely on section 126 of the Criminal • compensation for damages they are in violation of these obliga- Code to prosecute for an act or omis- • specific performance of the obliga- tions, most immediately react to sion contrary to the Canada Elections tion which gave rise to the offence correct their behaviour to ensure Act. The Act includes a complete (e.g. submit return) their conformity with the law. code for the conduct of federal elec- • any other reasonable measure tions: there are some 175 distinct (e.g. charitable donation) Criminal prosecution and sanctions offences in Part 19 covering acts or must necessarily continue to be applied omissions committed by candidates, Finally, in section 502, a number of to serious wrongdoings that put the electors, voters, registered parties, offences are listed as being either illegal integrity of the electoral process in third parties, employers, official or corrupt practices. These include jeopardy. However, where there is no agents and election officers. serious wrongdoings that affect the overriding public interest to be served

March 2003 5 by a prosecution, every effort must be made to promote alternative means of achieving compliance with the Canada Elections Act.

It is important to recall that the most effective element that ensures the smooth and harmonious unfolding of an electoral event and of related political processes remains the com- mitment of all stakeholders to abide, in good faith, by the rules prescribed in legislation. Indeed, the integrity of the electoral process can only be main- tained where parties, candidates, third parties and electors have trust in the system and where they act in accord- ance with their obligations under the law.

NOTES

1. Reporting of election expenses by candidates had been required since 1874 (Dominion Elections Act, S.C. 1874, c. 9), but the law did not include any means for enforcement.

2. Previous holders of the Office have been John P. Dewis (1974-1976), Joseph Gorman (1976-1987), and George M. Allen (1988-1991). The use of the masculine gender in this article is intentional as all commissioners to date have been male.

3. Although section 38 of the Referendum Act provides the Commissioner with a similar role with respect to that Act, the present article will deal solely with the Commissioner’s responsibilities pursuant to the Canada Elections Act, S.C. 2000, c. 9.

4. An on-line copy of the manual can be found on the Elections Canada Web site, in the Electoral Law and Policy pages, together with all other public notices and information relating to the Office of the Commissioner of Canada Elections.

6 Electoral Insight Election Legislation Enforcement

Comparative Review of Penalties for Electoral Offences in Canada Marc Chénier Legal Counsel to the Commissioner of Canada Elections Alain Pelletier Assistant Director, National and International Research and Policy Development, Elections Canada

Broad similarities can be detected in processes adopted in and its effect on the range of remedial measures available each Canadian jurisdiction to ensure the fair, transparent to rectify a contravention of electoral law. and accessible election of members to their respective legislative assemblies.1 These similarities in the provisions To begin, a few observations may be helpful. First, it is adopted by the federal Parliament and the provincial/ important to note that electoral law covers a broad range territorial legislatures have led to specific acts or omissions of processes that include the actual voting process itself, being identified in most jurisdictions as constituting but also: election financing; the registration of political offences under their specific electoral laws.2 Despite these parties; the nomination of candidates; the regulation of similarities in processes and in the offences created to activities of partisan groups during election campaigns; ensure their lawful enforcement, Cécile Boucher stated in and political broadcasting and advertising. Offences have 1991, as part of her work for the Royal Commission on evolved to cover each of these different areas of electoral Electoral Reform and Party Financing, that “there are no law, and as a general rule, the ranges provided for the various real similarities in penalties for election offences in various punishments available depend on the level of intent required jurisdictions.”3 for the commission of the offence (implying various levels of “blameworthiness”), and on the severity of the consequences As this article demonstrates, more than a decade later, of the act or omission on the integrity of the electoral process. this lack of uniformity in the penalty schemes in federal, provincial and territorial electoral legislation is still evi- Second, under the Constitution, the federal Parliament dent. Specifically, we will review the availability of fines has sole authority to legislate to define criminal acts.4 and imprisonment as punishments used by the courts in Prosecutions for such offences are necessarily by way of sentencing individuals convicted of offences under the indictment. Although the provinces cannot create criminal various electoral laws. We will also discuss the availability acts, they are entitled to create offences that are required of additional penalties, some of them being automatic for the effective enforcement of a statute that they have consequences upon conviction – namely of an offence adopted in the exercise of their constitutional powers identified in the particular legislation as being either an according to their fields of competency. Where such a illegal or a corrupt practice; others being imposed at the statutory offence is created either by a province or by the discretion of the court upon sentencing. Finally, in our federal government, it is not considered a criminal act, and conclusion, we will note the trend evidenced over the past the proceedings are by way of summary conviction. This decade towards the decriminalization of statutory offences entails a less demanding procedure than by indictment.5

March 2003 7 As a general rule of thumb, ranges maximum fine is twice that, at $10 000, provided by law for all other offences of penalties made available during for the corresponding offence committed where imprisonment is also available sentencing are generally higher for during a Manitoba provincial election, as an option. In Quebec, where no offences that are categorized as crimi- where the prosecution must necessarily prison terms are available as a sentenc- nal acts than for those that are merely proceed by summary conviction.7 ing option, maximum fines tend to statutory offences. Conversely, where the Commissioner be generally higher than in other of Canada Elections – the federal pros- Canadian jurisdictions. Fines ecutor of electoral offences – chooses to proceed by summary conviction on Imprisonment All jurisdictions in Canada provide for a charge of intimidation, the maxi- the imposition of fines as an option for mum fine applicable is $2 000.8 This It is arguable that imprisonment is punishment upon conviction for an represents one fifth of the maximum the ultimate punishment available to offence under their election legislation. penalty provided for in Manitoba for the courts under Canadian electoral the equivalent offence also prosecuted law, since it entails serious conse- The requirement to impose at least a by way of summary proceedings. This is quences that deprive an individual of minimal fine upon conviction is pro- one example of higher maximum fines his or her rights to liberty and free- vided for only in New Brunswick and being consistently applied to all dom. However, it is not a sentencing Quebec. In these jurisdictions, when offences in the Manitoba statute.9 option available to Quebec judges sentencing individuals convicted of for any offence committed under that some particular offence, judges are In some jurisdictions, where the option province’s election law,12 and in required to impose at least a certain of imprisonment is not available for a New Brunswick, a prison term can specified amount in fines. As an specific offence, the maximum range of be imposed only as a punishment for example, anyone in New Brunswick the fine that can be imposed by a court offences under the election financing who is found guilty of having disclosed is significantly more than the usual provisions.13 Minimum terms of at a polling station the name of the fines provided for in candidate for whom they voted is that statute. In the automatically liable to a fine of at least Canada Elections All jurisdictions in Canada provide for 6 $70. These minimal fines limit to a Act, for example, the imposition of fines as an option for certain extent judiciary discretion with where only a fine is respect to sentencing. made available to punishment upon conviction for an offence the sentencing under their election legislation. With respect to maximum amounts, in judge, the maximum the federal scheme, the harsher range fine that can be of fines is reserved for convictions on imposed jumps to $25 000.10 Offences imprisonment are no longer used in indictment for offences requiring intent. where this particular maximum fine Canadian electoral law, although as In these cases, fines of not more than applies include: wilfully failing to recently as 1991, Saskatchewan still $5 000 can be imposed. While the provide election survey information; imposed a minimum term of seven option of proceeding by indictment is wilfully transmitting survey results days in prison for some offences available at the federal level only for during the blackout period; and, being committed under its Elections Act.14 criminal acts, some provinces have a broadcaster, wilfully failing to make nevertheless provided for harsher fines broadcasting time available pursuant Despite the availability of this form for similar statutory offences that are to the Act’s requirements.11 of punishment for most offences necessarily prosecuted on summary identified in the Canada Elections conviction. The same occurrence is observable Act, since the office of the in the Northwest Territories and in Commissioner of Canada Elections Accordingly, while the $5 000 maxi- Nunavut, where broadcasting offences was created in 1974 the courts have mum upon conviction on an indictment are punishable only by a fine. This fine not imposed a term of imprisonment is applicable in cases of intimidation is increased five times, to $5 000, from on anyone convicted of an offence of voters at the federal level, the the usual maximum fine of $1 000 under that Act.

8 Electoral Insight As the only Canadian jurisdiction with the constitutional power to Additional penalties for corrupt or illegal practice create offences representing criminal INELIGIBILITIES: acts, offences in the federal legislation To be To be To sit To be To vote To be can, where so indicated, be prose- Jurisdiction nominated elected as as a nominated appointed cuted either by way of summary as member member or to civil candidate appointed service conviction or by indictment. to office Accordingly, the maximum period of imprisonment that can be imposed Canada Newfoundland for an offence prosecuted by way of and Labrador indictment under that Act is, at five Prince Edward years, the longest period of imprison- Island ment provided for in all of the Nova Scotia jurisdictions. New Brunswick Nova Scotia and Prince Edward Quebec Island have the highest provincial/ Ontario territorial maximums for their prison Manitoba terms, at two years for all offences Saskatchewan where a prison term is available as Alberta a sentencing option. Conversely, British Columbia Newfoundland and Labrador and Northwest Ontario are the only provinces that Territories exclusively provide for maximum Yukon prison terms that are less than one Nunavut year, when a term of imprisonment is (Adapted from: Compendium of Election Administration in Canada: A Comparative Overview, 2002 Edition; included as a sentencing option for an Table H.2 General Offences and Penalties) offence committed under their elec- toral legislation. Maximums in Special consequences upon an official agent, and the automatic Newfoundland and Labrador range conviction for illegal or ineligibilities that result from the from periods of imprisonment of no corrupt practices conviction are in effect for a period more than three months, to a maxi- of five years following the conviction. mum of no more than six months for Aside from British Columbia, Yukon, Offences identified as constituting offences related to the voting process Manitoba and Newfoundland and corrupt practices mostly involve or election signs. In Ontario, impris- Labrador, all other Canadian jurisdic- actions or omissions by candidates or onment is used as a sentencing option tions have identified specific offences their official agents, except for three very sparingly, with a maximum term under their electoral legislation that distinct situations: where anyone is of six months for some offences they consider to be either illegal or convicted of signing a nomination related to the ballot and some related corrupt practices. In addition to the paper when ineligible; performs a to election officers. other punishments provided for these forbidden act with a list of electors; or offences (i.e. fines and prison terms), applies for a ballot under a false name. Yukon’s approach is to impose the the legislator has added special In the case of a corrupt practice at the identical maximums in terms of fines automatic consequences in terms of federal level, the ineligibilities that and imprisonment for every offence ineligibilities that apply for a specified automatically apply are in effect for a under its electoral legislation. All period of time. period of seven years from the day of offences are therefore punishable by the conviction.16 a fine of no more than $5 000, and/or In the federal context, all illegal imprisonment for no more than practices involve offences committed The longest periods of ineligibility are one year.15 by either a candidate for election or found in Ontario and Alberta, where

March 2003 9 they are in effect in the case of Ontario that spent in excess of the limit on of an individual for an offence under until the eighth anniversary of the advertising expenses to which it was electoral law. date of the official return,17 and in subject is liable to a fine of up to Alberta, for the eight years following five times the amount by which it Some move towards decriminalization the date on which the Chief Electoral exceeded the limit.20 A third party is of regulatory offences in Canada has Officer receives the report of the court an individual or group, other than a also been evidenced, to a certain degree, stating that the candidate was found candidate, a registered party or a local in election law. This has tended to guilty of a corrupt practice.18 The association of a registered party, that increase the diversity of remedial period of ineligibility following a spends money on election advertising and punitive measures available for conviction for an offence listed as an during an election period. A type of enforcement. At the federal level, for illegal practice in the Northwest “surcharge” is also Territories and Nunavut is for five available in Manitoba years, and for a corrupt practice, seven as a sentencing option, Further to the automatic consequences years from the date of the conviction. where any person con- All other jurisdictions that have iden- victed of an offence upon conviction that apply to offences tified offences as being either illegal related to bribery or identified as illegal or corrupt practices, or corrupt practices have special inducement is liable to a few jurisdictions have adopted automatic consequences that apply a further fine equal to additional penalties that may be for a period of five years. double the amount or value of the benefit imposed at the court’s discretion. In addition to the additional conse- involved.21 The adop- quences noted in the above table, tion of this sentencing New Brunswick, Saskatchewan and option may be recognition that money example, a review of the notices Alberta prohibit anyone convicted of spent (or overspent) in a manner of agreements published by the a corrupt or illegal practice of being contrary to the provisions of election Commissioner of Canada Elections entered on a list of electors or of being legislation can have especially nega- in cases where compliance agreements registered as an elector for the period tive consequences on the integrity of were entered into for cases of noncon- of the ineligibility. Further, Quebec the electoral process. formity, indicates that, on a voluntary prohibits such a person from engaging basis, some offenders have made a in partisan work during the five years Moreover, other forms of additional charitable donation or performed following the date of the judgment.19 punishments are provided for at the community service.22 federal level in section 501 of the Additional penalties Canada Elections Act. They include Another example of alternative means the performance of community service, of dealing with nonconformity can be Further to the automatic consequences compensation to persons who may found in New Brunswick, where pay- upon conviction that apply to offences have suffered damages as a result of the ment of a sum equal to $50 for each identified as illegal or corrupt practices, commission of the offence, specific day an individual is late in filing a a few jurisdictions have adopted addi- performance of any obligation, or the financial return can remedy what tional penalties that may be imposed imposition of any other measure the would otherwise be an offence.23 This at the court’s discretion. court considers appropriate to ensure represents a rare case in Canadian compliance with the Act. No other electoral law where civil fines exist Among these, two jurisdictions allow jurisdiction provides for comparable as an enforcement tool, and other the sentencing judge to impose a type punishments or remedial measures. jurisdictions may one day decide to of “surcharge” in addition to any other contemplate such a regime in the fine or term of imprisonment, in Conclusion interest of further decriminalization. specific circumstances. The Canada Elections Act provides that, in addition This article has reviewed the possible It is apparent that the various juris- to any other punishments that may be punishments that can be imposed by dictions in Canada continue to imposed under the Act, a third party the criminal courts upon conviction have diverging penalty schemes for

10 Electoral Insight punishment of individuals who commit offences under their respective election acts. In a federal system, this is not necessarily surprising. Indeed, a certain degree of diversity can be instructive as jurisdictions learn from each other about what works best to ensure compliance with electoral law.

NOTES

1. At the federal level, only members of the 9. Compendium of Election Administration in 22. Notices of compliance agreements can House of Commons are elected. The Canada: A Comparative Overview, 2002 be viewed by clicking “Compliance Prime Minister appoints senators to the Edition, available at www.elections.ca. Agreements” on the Electoral Law and second chamber of Parliament, the Senate. Policy menu of the Elections Canada Web 10. Canada Elections Act, S.C. 2000, c. 9, site (www.elections.ca). 2. This is not to say that the rules are identi- s. 500(4). cal. For instance, while the sale of alcohol 23. Political Process Financing Act, S.N.B. 1978, 11. For a complete list of offences where the continues to be prohibited on election day c. P-9.3, s. 88(2). maximum fine of $25 000 can be imposed in Prince Edward Island, Saskatchewan upon conviction, please see s. 495(4) of and all three territories, there is no longer the Canada Elections Act. such a prohibition at the national level or in the other provinces. 12. Election Act, R.S.Q., c. E-3.3.

3. C. Boucher, “Administration and 13. Political Process Financing Act, S.N.B. 1978, Enforcement of Electoral Legislation in c. P-9.3. Canada” in M. Cassidy, ed., Democratic Rights and Electoral Reform in Canada, 14. The Election Act, 1996, S.S. 1996, Volume 10 of the Research Studies, Royal c. E-6.01, s. 191. Commission on Electoral Reform and 15. Compendium of Election Administration in Party Financing, Dundurn Press, Toronto, Canada. 1991, p. 479. 16. A complete list of offences constituting 4. Constitution Act, 1867, s. 91. illegal or corrupt practices in the federal 5. Where a dual procedure is provided for regime can be found in section 502 of the (i.e. the statute provides that the prosecu- Canada Elections Act, S.C. 2000, c. 9. tion can be by way of summary conviction 17. Election Act, R.S.O. 1990, c. E.6, s. 98(1). or by indictment), the prosecutor has the discretion to choose to proceed by either 18. Election Act, R.S.A. 2000, c. E-1, s. 173(2). way. The offence is considered to have 19. Compendium of Election Administration in been a criminal act only where the deci- Canada: A Comparative Overview, 2002 sion is made to proceed by indictment. Edition. 6. Elections Act, R.S.N.B. 1973, c. E-3, 20. Canada Elections Act, S.C. 2000, c. 9, s. 109; and Provincial Offences Procedure s. 500(6). Act, S.N.B. 1987, c. P-22.1, s. 56(3). 21. The Elections Act, R.S.M. 1987, c. E30, 7. The Elections Act, R.S.M. 1987, c. E30, s. 145(4). s. 164.

8. Canada Elections Act, S.C. 2000, c. 9, s. 500(5).

March 2003 11 Election Legislation Enforcement

Election Law Enforcement International Comparisons

Sue Nelson Electoral Consultant*

Enforcement of election laws and regulations is an essential The examples in this overview, taken from a range of coun- element of free, fair and reliable elections, no matter where tries, illustrate the different types of enforcement systems and they are held. Good enforcement not only ensures that the methods used. Some systems are based on an independent legal and regulatory framework for elections is applied and election commission, while others use the state administra- respected, but also reassures voters of the legitimacy of the tive system. In others, independent commissions enforce electoral process. It also encourages accountability, acts as a certain aspects of the election laws, such as campaign deterrent, increases transparency and builds confidence in financing or anti-corruption rules. the election results. Enforcement responsibility Most enforcement systems for democratic elections have evolved over time and are a reflection of the political and In many electoral systems, an electoral management body social context within each country. Their institutional (EMB) administers elections. In these systems, the EMB frameworks, jurisdictions and procedures differ, as does the often acts as the primary enforcement agency, taking quality of enforcement. However, despite differing charac- complaints and initiating investigations. For example, in teristics and mechanisms, most democratic electoral systems the Philippines, the Commission on Elections (COMELEC) have a similar basic enforcement regime: monitoring the is constitutionally responsible for the preliminary investiga- process, identifying and investigating offences, prosecuting tion and prosecution of cases involving election offences. those believed to be responsible, determining guilt and It was first established in 1941 as an independent national sentencing those responsible. elections commission to administer elections, and its role in enforcement has expanded over the years. In 1963, it Part of the enforcement regime is usually a system of checks was strengthened by legislation to “carry out its constitu- and balances to ensure the integrity and effectiveness of tional duty to ensure free, clean and orderly elections and election law enforcement. Different institutions, or offices administer and enforce all laws relative to the conduct of within an institution, are used as a means to limit the power elections.”1 Its enforcement powers were further expanded of other institutions and to serve as a check that the laws by the 1973 Constitution that added judicial power, making are being appropriately enforced. One of the most prevalent COMELEC a judicial tribunal as well as an election mechanisms used in election law enforcement is the sepa- administration body. ration of powers among the agencies that investigate, prosecute and adjudicate offences. Another widely used The approach of expanding the role of an independent safeguard is the availability of an appeal process as a check election commission to include electoral law enforcement on enforcement decisions. has been adopted by other countries, especially those with a troubled electoral past or history of election fraud. This *Sue Nelson was the lead writer of “Election Integrity” for is seen as a way to improve accountability and break an the Administration and Cost of Elections (ACE) Project entrenched party’s hold on the process, as demonstrated (www.aceproject.org). in Mexico.

12 Electoral Insight In the early 1990s, Mexico completely In some other electoral systems, a are informed and the case is then reformed its electoral system and government agency or ministry pursued by the prosecutors.3 adopted an extensive system of checks administers elections. Their election and balances. The 1990 Federal law enforcement regimes usually follow Adjudicating election Code of Electoral Institutions and the same rules that apply to offences disputes Procedures (COFIPE) gave the elec- not related to elections. In Moldova, toral management body (the Federal for example, a state Central Elections Election law enforcement requires a Electoral Institute or IFE) and the Commission organizes and conducts mechanism for voters, candidates and Federal Electoral Tribunal shared elections. Its permanent staff is supple- others to challenge suspect parts of responsibility for election law enforce- mented by seconded government the process and to have their com- ment. The IFE has authority to enforce workers during elections and prepara- plaints investigated and resolved. administrative rulings and sentence tions for elections. The Commission Many electoral disputes are based on electoral authorities, political parties, has the power to investigate abuses of allegations of fraud or election law citizens and other public and private the electoral system, including allega- violations. Each system has developed entities that violate the election law. tions of fraud. Administrative offences, its own way of handling election However, decisions by IFE can be which include voter fraud, are docu- disputes and processing any illegal appealed to the Tribunal, which mented by local officials (mayors, action found during the resolution handles the majority of offences. The chairpersons of the relevant electoral of those disputes. focus of the Tribunal is on juridical body or police supervising electoral aspects such as violations of political- operations) and are submitted to a The agency responsible for formal electoral rights and actions of federal court for processing. If criminal action electoral dispute resolution varies from electoral authorities that violate is involved, the state prosecution bodies one jurisdiction to another. As constitutional or other legislation.

Mexico has a federal political system, and each state has its own election laws that cover the organization of elections and the prosecution of related offences. As IFE is a federal institution, it enforces federal law. However, its agreements with the states to provide electoral instruments, such as voter lists and voter cards, make many locally committed election offences eligible for federal prosecution.

Thailand also recently reformed its electoral system and gave enforce- ment powers to its EMB. The 1997 Constitution established an Election Commission of Thailand (ECT) to organize elections and investigate and adjudicate cases of electoral fraud. Some of the powers given to the ECT include the right to enter premises and to search and seize documents, assets, and evidence without a court warrant, provided there is compelling evidence of a violation of election law.2

March 2003 13 indicated in the previous table, this preliminary investigation based on a search and seize property and detain a can be the responsibility of the EMB, complaint or a COMELEC initiative. suspect. Cases that reveal misconduct the judiciary, the electoral tribunal or It may delegate investigations to or malpractice by a civil servant are other mechanisms. regional election directors or provincial referred to government departments election supervisors. The investigating for disciplinary or administrative In the Bahamas, a temporary electoral officers have subpoena powers and can action. Cases of criminal violations are court is created to handle election hold hearings to clarify issues. Once an given to the Secretary for Justice for petitions. This civil court issues a investigation is concluded, the investi- prosecution.11 Certificate of Judgement that either gating officer determines whether upholds or voids an election. At the there are sufficient grounds to hold a Types of offence same time, the court will issue a respondent for trial. If so, the case is report to the Attorney General if then turned over to government Most election laws include detailed corrupt or illegal practices were prosecutors. sections on election offences and involved, including the nature of the penalties. Despite variations in con- offence and the identity of the persons In Bangladesh, an Electoral Enquiry tent and the wording used to describe involved. The Attorney General then Committee is established by the the offence, the basic list of offences is decides whether to start a criminal Election Commission. The Committee similar. The differences are found more prosecution.8 includes judicial officers and its mandate in the penalties than in what consti- is to investigate problems and prevent tutes an electoral offence. A similar system is used in Western pre-poll irregularities. It investigates Samoa, where the Supreme Court complaints made directly to the Several countries, such as the Bahamas hears all election petitions. At the Committee or through the Election and Western Samoa, differentiate end of the trial, the court issues a Commission. The Committee can also between “illegal practices” and Certificate of Court on the result of use its own initiative to investigate “corrupt practices.” Illegal practices the election, as well as a Report of the any act or omission that it believes in the Bahamas are tried before a Court on corrupt or illegal practices. obstructs the preparation and conduct magistrate and carry smaller penalties The report includes the names of those of a free and fair election. Bangladesh than corrupt practices. Corrupt prac- involved and is given to the Attorney also has election tribunals that are tices are tried before the Supreme General for prosecution.9 constituted by the Election Commission Court and carry stiffer penalties. and headed by judicial officers at the Prosecution for a corrupt practice Investigations divisional levels, but the sole function also requires the consent of the of the tribunals is to try election peti- Attorney General. Essential to the enforcement process tions arising out of election disputes.10 are the investigation of complaints and In New Zealand, a corrupt practice is the determination of whether an illegal In Hong Kong, a separate Independent a serious offence against the electoral action has taken place. Agencies Commission against Corruption (ICAC) process, resulting in a fine and/or responsible for investigations can vary was established with law enforcement imprisonment. Anyone who wilfully widely among the different enforcement powers that include enforcing the contravenes the provisions of the regimes. In some countries, such as Elections (Corrupt and Illegal Conduct) election and related laws, is considered New Zealand, the police investigate Ordinance. Its enforcement strategy to have committed an illegal act. election offences. In other countries, includes investigation and prevention. The names of persons who commit a the EMB has this responsibility. As it found that it could not win the corrupt practice are put on a Corrupt battle against corruption unless it was Practice List for three years. Persons In the Philippines, COMELEC has able to change the people’s attitudes on the list, compiled by each registrar the exclusive power to conduct the towards corruption, it also carries out of electors, are not permitted to preliminary investigation of all public education activities. For election register to vote.12 election offences punishable under the offences, the ICAC receives, considers election act. The Law Department and investigates complaints of election In Mexico, offences against the within COMELEC often starts the corruption. It has the power to arrest, election law are characterized as

14 Electoral Insight “administrative faults” and are handled administratively by the candidate. Once someone’s election enforced by IFE. However, criminal Federal Election Commission, while rights are revoked, that person is acts fall under the federal penal code purposeful violations are prosecuted subject to prosecution under the in a section entitled “Electoral Laws as crimes by the Justice Department criminal procedure code. and the National Registry of Citizens.” (see “Campaign Finance Enforcement This was done to ensure that criminal in the United States” in this issue). In Mexico, a Special Prosecutor for offences are prosecuted by federal In the United Kingdom, an inde- Electoral Offences was created in 1994 judicial authorities. Only about pendent Election Commission was by presidential decree. The Special 5 percent of electoral offences are created in 2000 as part of campaign Prosecutor is a member of the administrative faults handled by IFE.13 finance reforms. Until that time, Attorney General’s office, but has tech- the United Kingdom did not have nical autonomy to address electoral What constitutes a campaign finance an agency for campaign finance offences. In the Philippines, a state, law violation and its penalty varies regulation enforcement at the provincial or city prosecutor decides widely. The Brazilian Electoral Court national level.15 whether to prosecute a case. However, COMELEC has the power to review and reverse the resolution of a prosecu- tor. Criminal cases are tried in trial courts and appeals are processed Country Agency through the criminal justice system. Canada Commissioner of Canada Elections Private prosecutors are allowed in cases France National Commission16 involving the recovery of civil liability. Mexico IFE General Council There is a different system in Bulgaria, Nepal Election Commission where the Central Election Committee

New Zealand Electoral Commission and constituency election committees Thailand Election Commission investigate violations and draw up a United Kingdom Election Commission17 statement of findings. Penalty state- United States Federal Election Commission18 ments are then issued by the regional governments where the violation occurred. If a penalty instrument is has the power to verify the financial Prosecution issued against a regional governor, reports provided by political parties, the penalty statement is done by the but only as an administrative review Many systems use the government Minister of Public Administration.19 to see if their statements meet general prosecution system to prosecute crimi- accounting practices. There are no nal acts related to elections. Some of Penalties legal sanctions for non-compliance.14 these countries include Armenia, the However, in other countries, there are Bahamas, Burkina Faso, Mali, New Penalties for election law violations penalties for non-compliance. In Zealand and South Korea. and for election-related crimes vary Thailand, for example, the Election widely from country to country. Commission can seize cash and prop- In Thailand, it was found that the Much of the variation depends on erty of those who violate campaign criminal prosecution system was too the particular context in each country finance laws. In New Zealand, the slow and ineffectual to deter vote- and the perception of what constitutes Electoral Commission reports offences buying and election fraud. The 1997 a serious threat to its electoral process. to the police. electoral reforms gave the ECT the power to adjudicate cases of electoral In Mexico, penalties for administrative In the United States, enforcement fraud. If evidence of fraud is found, the faults are established according to who differentiates between deliberate or ECT can declare an election null and committed the fault. The different large financial violations and mistakes void and order a by-election. It can fault categories are voters, electoral made out of ignorance. Mistakes are also revoke the election rights of a officials, party officials, public servants

March 2003 15 and religious ministers. For example, vote. In Western Samoa, those Enforcement systems form part of sanctions for a citizen found guilty of convicted must also pay all of the each jurisdiction’s legal and regulatory a vote violation range from a 10 to a court costs. And many systems will framework. However, unless an 100 wage-day20 fine and/or six months revoke voter and candidate rights, enforcement system is respected and to three years in prison. Religious depending on the violation. appropriately used, its value is ques- ministers who try to influence voters tionable. Widespread impunity for receive up to a 500 wage-day fine. Conclusion lawbreakers or the use of enforcement Electoral officials who alter electoral for partisan purposes erodes public instruments or documents or who refuse Despite the various enforcement systems, trust and can cloud the legitimacy of to perform their electoral duties receive the similarities among election enforce- the election outcome. a 20 to 100 wage-day fine or from three ment regimes in democratic systems are months up to five years in prison. striking. They have the same funda- Enforcement regimes also reflect the mental objectives and, in large measure, norms and values of their citizens, and In other countries, penalties are divided identify the same basic acts as offences. the international trend since the early according to whether the offence was a They also face the same problems of 1990s has been towards free and fair corrupt act or an illegal practice. In the providing neutral, timely and effective elections. As citizens and political Bahamas, illegal practices receive a fine enforcement within an often highly participants demand greater account- up to $1 000 and/or up to three months charged and politicized environment. ability and reliable elections, in jail. Corrupt acts receive a fine of up The differences reflect the different enforcement regimes are updated, to $2 000 and/or up to two years in jail. political institutions and history of each reformed or strengthened. Ensuring country and what they perceive as the there are functioning checks and Other countries add additional penalties most direct threats to the holding of balances is a significant part of that for crimes committed under special free and fair elections. This focus on process. Another is building public circumstances. For example, in Mali, historical and potential threats is reflected trust and confidence in the enforce- the election law adds forced labour to in the choice of institutions, the amount ment system, so that it can fulfill its the punishment for crimes that are of power given to each institution and objective of protecting the integrity violent or violate the secrecy of the the severity of the sanctions. of the electoral process.

16 Electoral Insight REFERENCES

Arya, Gothom. “Election System and Events in Donsanto, Craig C., “Campaign Finance Laws Pinto-Duschinsky, Michael and Alexander Thailand.” www.ect.go.th/english/commissions/ in the U.S.” 1999. www.psephisma.org:8080/ Postrikov. “Campaign Finance in Foreign gothom/go7.html site/index.xsp Countries: Legal Regulation and Political Practices.” 1999. www.psephisma.org:8080/ Algeria. “Electoral Law, Chapter V. Penalties.” Hong Kong. Independent Commission against site/index.xsp http://membres.lycos.fr/lexalgeria/elect.htm Corruption. www.icac.org.hk Ricay, Agustin. “Electoral Offences (Mexico).” Armenia. “Electoral Code of the Republic of Mali. “Election Law, Chapter XII: Penalties, Paper for the Third Annual Trilateral Armenia.” www.ifes.am/laws/electoral_code.htm Ministère de l’Administration Territoriale et des Conference on Electoral Systems. Washington, Collectivités Locales.” http://w3.matcl.gov.ml/ Bahamas. “Bahamas: Parliamentary Elections DC. 1996. (Published by International ministere/serv-cent.html Act, 1992, Part VII: Election Petitions and Foundation for Election Systems). Inquiries into Qualifications.” www.georgetown. Mexico. Federal Electoral Institute. Thailand. “Organic law on the Election of edu/pdba/Electoral/Bahamas/bahamas.html www.ife.org.mx/wwwcai/pef2000i.htm members of the House of Representatives Bangladesh. Bangladesh Election Commission Mexico. Electoral Tribunal. www.trife.gob.mx and Senate.” www.ect.go.th/english/laws/ Secretariat. “Electoral System, Code of conduct, organiclawelection.html Moldova. “Electoral Code.” www.ifes.md/ prevention of pre-poll irregularities and election elections/electoralcode/ United Kingdom. Electoral Commission of the petitions.” www.bangladeshgov.org/ecs/ United Kingdom. Fact sheet, “Campaign Nepal. Election Commission. “Election Bulgaria. “Election of Members of Parliament Expenditure 2002.” www.electoralcommission. Crimes.” www.election-commission.org.np/ Act, Promulgated State Gazette No. org.uk/about-us/factsheetspub.cfm 6.html 37/13.04.2001.” www.essex.ac.uk/elections Western Samoa. “Electoral Act 1963.” New Zealand. Election Commission of Bulgaria. “Presidential Elections Act.” www.samoalive.com/electoral_act_1963.htm New Zealand. www.elections.org.nz www.essex.ac.uk/elections Philippines. “Omnibus Election Code of the Burkina Faso. Independent National Elections Philippines, Article XXII: Election Offenses.” Commission. “Election Law, Chapter VIII: www.comelec.gov.ph/laws/oec.html Penalties.” www.ceni.bf

NOTES

1. “Republic Act No. 3808,” Philippines. 9. “Electoral Act 1963,” Part I. 16. Ibid. Full title is the National Commission www.comelec.gov.ph www.samoalive.com/electoral_act_ for Election Campaign Reports and 1963.htm Political Finance. 2. Information from the Election Commission of Thailand. 10. “Electoral System, Code of conduct, 17. Electoral Commission of the www.ect.go.th/english prevention of pre-poll irregularities and United Kingdom. Fact sheet, election petitions.” www.bangladeshgov. “Campaign Expenditure 2002.” 3. “Electoral Code,” Chapter 12. org/ecs/ www.electoralcommission.co.org/ www.ifes.md/elections/electoralcode/ about-us/factsheetspub.cfm 11. Independent Commission against 4. Data for Latin American countries Corruption. www.icac.org.hk 18. For federal campaign finance laws. provided by Daniel Zovatto. Data for Canada: www.elections.ca. Data for U.S.: 12. Electoral Glossary, Electoral Commission 19. “Presidential Elections Act.” Bulgaria. www.fec.gov/index.html. Data for other of New Zealand. www.elections.org.nz/ www.essex.ac.uk/elections countries from their electoral laws. elections/pandr/eglossary.html 20. A wage-day fine is the minimum wage or 5. The Commissioner of Canada Elections is 13. Carlos Navarro, Federal Electoral Institute, salary per day established by law. Mexico appointed by the Chief Electoral Officer. Mexico City. has three different wage zones but the minimum wage average is about four 6. EPIC Project. www.epicproject.org 14. Torquato, Jardim, “Equality of U.S. dollars per day. Opportunities Essential.” IFES Today, 7. Court system is also used. U.S. data from Vol. 8, No. 3, 9/99, p. 9. 21. Penalty data taken from the respective www.fec.gov/index.html election laws. 15. Pinto-Duschinsky, Michael and Alexander 8. “Bahamas: Parliamentary Elections Act, Postrikov. “Campaign Finance in Foreign 1992, Part VII: Election Petitions and Countries: Legal Regulations and Political Inquiries into Qualifications.” Practices.” 1999. www.psephisma.org. www.georgetown.edu/pdba/Electoral/ 8080/site/index.xsp Bahamas/bahamas.html

March 2003 17 Election Legislation Enforcement

Campaign Finance Enforcement in the United States

Rhonda J. Vosdingh Associate General Counsel for Enforcement, U.S. Federal Election Commission Lawrence L. Calvert Jr. Attorney, Enforcement Section, Office of General Counsel, U.S. Federal Election Commission

Introduction policy with respect to” the three laws at the centre of the federal scheme of campaign finance regulation. Those There are more than 50 campaign finance enforcement laws are: schemes in the United States, or roughly the same as the • The Federal Election Campaign Act of 1971, as amended number of campaign finance laws. U.S. federal law generally (FECA or “the Act”).2 FECA sets forth the basic limits governs only the financing of campaigns for election to the and prohibitions regarding who may contribute to whom officesArroget of President annus. and Vice scriptor President of abhincthe United States, and how much. It also requires periodic disclosure of Unitedannos States centumSenator, and qui United decidit, States Representative. inter 1 receipts and disbursements by candidates, political party Eachperfectos U.S. state has veteresqueits own system of campaignreferri finance law, committees, and other participants. 3 withdebet a corresponding an inter enforcement vilis atque scheme. Andnovos. some of • The Presidential Primary Matching Payment Act. This law the larger U.S. cities, such as New York and Los Angeles, provides partial public funding to the campaigns of can- have enacted their own ordinances regulating the financing didates in the presidential primaries who agree to limit of municipal election campaigns and have created local their spending. agencies to administer and enforce those ordinances. • The Presidential Election Campaign Fund Act.4 This law provides public funding to the general election cam- At the federal level, responsibility for campaign finance paigns of candidates for President and Vice President enforcement is again divided. Violations of the campaign who agree not to accept private contributions and to finance laws that are aggravated both in intent and amount spend no more than the federally provided amount. may be prosecuted as crimes by the U.S. Department of It also provides public funds for the national party Justice (DOJ). Offenders found guilty of campaign finance nominating conventions. crimes may be imprisoned, fined or both. All violations of the campaign finance laws, whether of aggravated or lesser This article addresses U.S. campaign finance enforcement intent and regardless of the amount of money involved, solely at the federal level. Its main focus is on the civil may be settled or prosecuted in civil court by the Federal enforcement process administered by the FEC. That process Election Commission (FEC or “the Commission”). is the only process applicable to the vast majority of cam- paign finance cases; it also has some features that are unique The FEC is the independent agency of the United States or very unusual in American administrative law. Before Government vested with the exclusive authority to turning to civil enforcement, however, we look briefly at “administer, seek to obtain compliance with, and formulate criminal enforcement.

18 Electoral Insight Criminal enforcement only as misdemeanours.5 However, the cannot be settled, prosecuting viola- most aggravated FECA violations – tions by filing civil lawsuits in U.S. The Department of Justice has had generally those where the amount District Court. authority to prosecute criminal viola- in violation aggregates more than tions of the federal campaign finance US$25 000 in a calendar year, or The Commission takes its mission of statutes since the first such statute was US$10 000 for cases involving encouraging voluntary compliance enacted in 1907. But before the creation very seriously. Its Public Information of the Commission in 1974, very few Division conducts an aggressive pro- prosecutions were brought. This was gram of educational outreach to the largely due to substantive deficiencies regulated community through a that made FECA’s predecessor, the monthly newsletter, the publication Federal Corrupt Practices Act of 1925, of “Campaign Guides” and other extremely easy to evade. However, it resources about the law, periodic train- was also due to an unwillingness to ing conferences, and the Commission’s expend limited prosecutorial resources Photo: U.S. Election Federal Commission Web site (www.fec.gov). Moreover, on what some considered “minor” or the Commission’s Reports Analysis “technical” violations. While the viola- Division (RAD) examines the reports tions may have been “minor” compared of receipts and disbursements that to other types of crime, failure to pros- political committees file with the ecute them contributed to widespread Commission; the most minor technical flouting of the Federal Corrupt Ellen L. Weintraub, Chair, U.S. Federal reporting violations are usually disposed Practices Act. Election Commission of by a letter from RAD to the reporting committee noting the problem, and Thus, in 1974 Congress created the reimbursed contributions through the committee’s subsequent filing of an FEC as an agency with power to enforce “straw donors” – are now felonies amended report. However, voluntary compliance with the Federal Election under amendments to FECA contained Campaign Act and the Presidential pub- in the Bipartisan Campaign Reform Act lic financing statutes in the civil courts. of 2002 (BCRA, popularly known as “McCain-Feingold” or “Shays- Violations of U.S. federal campaign Meehan”).6 Moreover, the statute of finance laws can be crimes only if they limitations for criminal prosecution of are committed with “knowing and FECA violations has been extended to wilful” intent. This is a very high five years, from the previous three.7 standard; it means, in essence, that defendants can be found guilty only if The FEC and its they knew their conduct was unlawful enforcement process compliance does not always work. and engaged in it anyway. Moreover, Where it does not, the Commission’s even “knowing and wilful” violations The Federal Election Commission has investigative and law enforcement may be prosecuted as crimes only if the six members. They are appointed by missions begin. amount of money involved exceeds a the President to serve staggered, six-year certain threshold, which in most cases terms. No more than three of the Matters under review (MURs) is US$2 000. Additionally, as in any commissioners may be of the same The Commission’s enforcement func- criminal case, the prosecution must political party. Among the Commission’s tions are carried out primarily through prove “knowing and wilful” intent, as core functions are encouraging voluntary enforcement cases, called Matters well as the acts constituting the crime, compliance with the federal campaign Under Review (MURs). The Act beyond a reasonable doubt. finance laws, investigating potential and regulations contain detailed violations of those laws, attempting to enforcement procedures that require Until recently, criminal violations of settle or “conciliate” violations where approval by the votes of four of the six the FECA could be directly prosecuted they are found, and, where cases commissioners at each stage (to initiate

March 2003 19 an investigation, approve a subpoena, Rights of respondents of Commission resources may be closed find probable cause to believe a violation Respondents receive notification of the without investigation, pursuant to the has been committed, settle a matter, or Commission’s actions at various stages Commission’s prosecutorial discretion. authorize suit). This means that, on in the enforcement process. They also Although staff is responsible for the occasion, the Commission will take no have opportunities at various stages to evaluation of a case under the EPS, action in an enforcement matter because respond in writing to the allegations the evaluation is subject to review by it lacks four votes for any particular raised and to the Commission’s actions the Commission, and all decisions to position. However, the four-vote require- during its investigation. However, close cases must be approved by the ment and the partisan balance of the respondents have no opportunity for an Commission. Commission combine to ensure that oral hearing before the Commission. every action taken by the Commission The “reason to believe” stage has at least some bipartisan support. Respondents have a right to be repre- In matters that are activated, the com- Congress deliberately designed the sys- sented by counsel, if they choose, at all plaint, the respondent’s response, and tem in this manner so that no majority stages of a matter. Moreover, until the the staff analysis and recommendations party could use the Commission to termination of the MUR, the Act are submitted to the Commission for persecute its political adversaries in the requires that the entire investigation an initial determination as to whether minority. If the Commission finds itself remain confidential, unless the there is reason to believe or no reason unable to act due to a lack of four votes respondent files an express waiver.8 to believe a violation has occurred. for a particular position, it will usually In internally generated matters, the then vote unanimously to dismiss the Case intake and enforcement Commission considers its internal case on those grounds. priority system records and the staff analysis and If a proper complaint within the recommendations when making this Initiation of a compliance action Commission’s jurisdiction is filed, a file determination. “Reason to believe” MURs may be initiated in two ways. is opened and assigned a MUR number. is a relatively low threshold, and the Most are initiated by complaints, which Copies of the complaint are sent to the statutory term has been criticized may be filed by any person who believes respondents and, once responses are as misleading; at this stage, the a violation has occurred. Complaints received, an initial determination is Commission is simply deciding must be signed and sworn to by the made as to whether the case appears whether there is reason to investigate. person making the complaint; the Act to be significant enough to warrant prohibits the Commission from acting use of Commission resources. The If the Commission finds reason to on anonymous complaints. They must Commission calls this triage process believe, an investigation is initiated. also allege violations within the the Enforcement Priority System, or If the Commission does not find reason Commission’s relatively limited juris- EPS. EPS can be viewed as a funnel. to believe, the matter is closed. The diction; for example, the Commission If purely voluntary compliance and Commission may also find reason to has no power to act on an alleged vio- (in the reporting context) prompt and believe, but exercise prosecutorial dis- lation of the Voting Rights Act, which is complete responses to RAD inquiries cretion to take no further action and wholly within DOJ’s jurisdiction. are at the top of the funnel, EPS further close the file. winnows the enforcement agenda so MURs can also be initiated by the that staff focus only on the most serious If the Commission finds reason to Commission itself based upon informa- and significant cases. Among the factors believe, the respondent will receive a tion ascertained in the normal course of examined in EPS are the presence of legal and factual analysis showing the carrying out its responsibilities, such as knowing and wilful intent, the impact basis for the Commission’s finding. At through RAD’s regular review of reports of alleged violations on elections, the this point, unless the Commission has or through an audit of a political com- amount of money involved, and whether determined to take no further action mittee; the receipt of a referral from certain areas of the law require special and close the file, all respondents – another government agency; or through attention. Cases that appear to warrant including respondents in internally gen- the receipt of a sua sponte submission use of Commission resources are assigned erated matters, who have received no from a respondent (i.e. one in which a to staff, as staff becomes available to work notification of the matter prior to this respondent reports its own violation). on them. Cases that do not warrant use point – have an opportunity to respond.

20 Electoral Insight Investigation and pre-probable- cause conciliation The Act provides a full range of investigative powers to enable the Photo: Photo: Getty Images Commission to secure sufficient infor- mation and evidence to resolve the case. The investigation may be con- ducted through informal contacts or through formal issuance of subpoenas and orders for production of docu- ments, depositions or answers to interrogatories.

The Commission’s regulations provide a means to settle matters early if the respondent states in writing a willing- ness to conciliate a violation prior to a Capitol Building, Washington finding of probable cause. Upon receipt of this request, staff will prepare a con- considers both briefs before voting on If the Commission finds that a violation ciliation agreement for Commission probable cause. was knowing and wilful, it may seek a approval if the General Counsel’s civil penalty of up to twice the amount investigation is complete. In an effort In the event the Commission finds it otherwise could.9 The Commission to streamline the process, in certain probable cause and decides to pursue may, of course, settle or civilly prosecute types of cases, the Commission may the matter, it must attempt to knowing and wilful violations itself. It send a proposed pre-probable-cause conciliate the violation for at least may also refer such violations to DOJ conciliation agreement to a respondent 30 days, but not more than 90 days. for criminal prosecution, but not until along with the reason-to-believe notice. If it has unsuccessfully attempted pre- it has found probable cause to believe. probable-cause conciliation, it must If the Commission refers a matter to Probable cause to believe nevertheless try again after a finding DOJ, the Commission may retain juris- If a matter is not resolved in pre- of probable cause. diction over that matter until DOJ has probable-cause conciliation, the General completed its process with regard to Counsel prepares a brief stating his A conciliation agreement usually pro- the case. position on whether the facts of the vides for payment of a civil penalty by case and the applicable law indicate the respondent. The Commission may Post-probable-cause action probable cause to believe a violation consider various factors in determining If the Commission is unable to correct has been committed. Although the the amount of the civil penalty. a violation through a conciliation Commission has not formally articu- agreement, it may authorize the filing lated a definition of “probable cause to The agreement also contains a state- of a civil action for relief in U.S. District believe,” for most Commissioners, in ment of facts, and, in virtually all Court by an affirmative vote of at least most cases, it seems to mean “more cases, an admission of violation and an four members. The District Court likely than not” – the same standard agreement to cease and desist from fur- reviews the facts of the matter de novo. the Commission would have to meet in ther violations of the provision of law court if it ultimately sued a respondent. at issue. It may also require corrective Two aspects of this procedure are The General Counsel simultaneously action, such as the refund or giving up highly unusual compared to most other provides the respondent and the of illegally received contributions; the U.S. administrative law enforcement Commission with a copy of the brief. amendment of a committee’s disclosure schemes. First, most other U.S. admin- The respondent has 15 days after reports; or the attendance of the com- istrative agencies have the power to receipt of the brief in which to submit mittee’s treasurer at an FEC training directly fine persons who violate the a response brief. The Commission then conference. law or to order them to cease and

March 2003 21 desist from further violations. In the that civil enforcement actions under Commission may consider in deciding usual scheme, after an investigation, an the Act would be brought independ- to take no further action include the alleged lawbreaker is administratively ently of political considerations. amount of money involved, the timing prosecuted by agency staff before an of the violation, actions taken to correct independent administrative law judge, In contrast to criminal FECA prosecu- the violation, the timing of those actions, who takes testimony and renders an tions, where the government must and whether the matter involves an initial decision; the presidential prove beyond a reasonable doubt that ambiguous area of the law or a provision appointees at the head of an agency the defendants knowingly and wilfully that has not been previously interpreted serve an appellate function. The bur- violated the law, FEC enforcement by the Commission. den of contesting the agency’s final suits are subject to the same “prepon- findings and orders is on the respondent, derance of the evidence” burden of Second, a compliance matter is who must usually appeal the final proof as any civil suit in the United terminated (at least with respect to agency action to a U.S. Circuit Court States. This burden is considerably a particular respondent) when the of Appeals. Those courts, in turn, lower than “beyond a reasonable Commission enters into a conciliation review the agency actions under the doubt.” Moreover, the FEC may bring agreement with the respondent. more deferential standards applied by a civil enforcement suit even if the Finally, a compliance matter is termi- appellate courts. defendant did not have knowing and nated after a failure to get four votes wilful intent. Violations for any action necessary to continue of FECA’s limitations and the matter. Congress provided for the Commission prohibitions on the sources and amounts of Between 1996 and mid-2002, about to conduct most of its own litigation in contributions are subject 56 percent of matters activated and order to ensure that civil enforcement to civil sanction if com- assigned to staff were resolved through actions under the Act would be brought mitted with knowing conciliation agreements; some of these intent. This means that matters settled relatively rapidly, but independently of political considerations. the defendants intended others settled only after extensive to do the act that violated investigations. Roughly 39 percent the law, whether or not were closed either after a substantive In contrast, there are no administrative they knew it was illegal. Violators of finding of no violation, an exercise of law judges at the Commission. With FECA’s requirements for disclosure of prosecutorial discretion to take no the limited exception of a pilot pro- political committees’ receipts and dis- further action, or a failure to obtain gram for handling routine reporting bursements are subject to civil sanction 4 votes. Only about 5 percent of matters violations, the Commission has no under a “strict liability” standard. This activated and assigned to staff were power to do anything to a respondent, means that the FEC need prove only subjected to the entire enforcement other than to sue. Rather than serving that the violation occurred, and need process through the authorization of an appellate function, the Commission not prove intent. a civil law enforcement suit. performs a function somewhat akin to a civil grand jury’s. The burden of Termination of enforcement matters Complainant’s challenges to going forward in court is on the Compliance matters are terminated in agency handling of complaints Commission, not the respondent. one of three ways. First, they may be If the Commission does not take final terminated if the Commission closes action on a complaint within 120 days The second unusual aspect of this pro- the file after finding no violation or tak- after it was filed, the complainant may cedure is that the General Counsel’s ing no further action. A Commission seek judicial review in the U.S. District Office, not the Department of Justice, determination in the context of an Court for the District of Columbia. The represents the Commission in enforce- enforcement matter involves the complainant will have to show that the ment litigation (and in defensive exercise of prosecutorial discretion. Commission’s failure to complete action litigation, as well). Congress provided Therefore, the Commission can decide was contrary to law or arbitrary and for the Commission to conduct most of not to pursue a particular violation due capricious. In deciding such claims, the its own litigation in order to ensure to mitigating circumstances. Factors the court takes into consideration the nature

22 Electoral Insight and complexity of the enforcement mat- ter and the action the Commission has taken, as well as other factors such as the Commission’s workload and its Photo: Photo: Getty Images human and budgetary resources. If the court agrees that the manner in which the Commission is proceeding is not arbitrary and capricious, it may dismiss the suit, or it may require periodic reports from the Commission about any action the Commission is taking.

In defending these cases, the Commission frequently provides the court and complainant/plaintiffs with confidential chronologies of the actions taken in the enforcement matter up to Senate of the United States that point. These cases frequently settle with an agreement to provide the court Alternative enforcement Under the new program, if the and complainant with periodic updates. processes Commission finds reason to believe that a committee failed to file a report Moreover, in a provision that may be Administrative fines program at all or on time, it notifies the com- unique in American administrative A larger number of political committees mittee in writing of the factual and law, complainants may seek judicial than one might expect either fail legal basis of its finding and the amount review of a Commission decision not altogether to file the required reports of the proposed civil money penalty. to pursue a matter. If the Commission disclosing their receipts and disburse- The committee has 40 days from the dismisses a complaint, the complainant ments, or fail to file them on time. date of the reason-to-believe finding may file a petition to review that dis- Many of these violations do not result either to pay the civil money penalty missal. However, the petition must be from malfeasance, but are instead com- or submit to the Commission a written filed in the U.S. District Court for the mitted by smaller committees staffed by response, with supporting documen- District of Columbia, no matter where less experienced personnel. The only tation outlining the reasons why it the complainant is located. The peti- factual issue in the cases is usually believes the Commission’s finding tion must be filed within 60 days after whether the report was or was not filed and/or penalty is in error. the Commission dismisses the com- on time. Nevertheless, prior to 2000 plaint. As with suits for delay, the the FEC had no way to deal with these If the committee submits a response, complainant/plaintiff bears the burden cases other than the procedure-laden the response is forwarded to an impar- of proving that the Commission’s failure process just described. tial reviewing officer – someone to act was arbitrary and capricious or employed by the FEC who was not contrary to law. Amendments to the FECA, first enacted involved in the original reason-to- by Congress in 1999 and since renewed, believe finding. After reviewing the If the court rules that the Commission permit the FEC to directly impose civil Commission’s finding and the commit- acted in an arbitrary and capricious money penalties, based on published tee’s written response, the reviewing manner, it may order the Commission to schedules of penalties, for late filing and officer forwards a recommendation to take some other action within 30 days. non-filing of disclosure reports, if the the Commission. Respondents have If the Commission does not conform violation occurs between January 1, 2000, an opportunity to submit a written to the court’s directive, the court may and December 31, 2003. Beginning with response to the reviewing officer’s authorize the complainant to file his or the July 15, 2000, quarterly reports, the recommendation. The Commission her own suit against the respondent to Commission began a new program to then makes a final determination as remedy the alleged violation of the law. assess these penalties. to whether the committee violated

March 2003 23 the Act. If the Commission finds a ADR office. If the respondent is not information that respondents provide violation occurred, it assesses the civil willing to participate in ADR, the in a mediation can be used in a later money penalty. matter is returned to the General enforcement proceeding. Counsel’s Office for handling through After a final determination by the the normal enforcement process. If the Any proposed settlement, whether Commission, the committee has respondent is willing to engage in the reached through negotiation or media- 30 days to pay the penalty or seek judi- ADR process and agrees to toll any tion, is submitted to the Commission cial review in a U.S. district court in applicable statute of limitations for the for its approval. All approved settle- time the matter is pend- ments become a matter of public record; ing in ADR, the matter all are accompanied by a statement that In 2000, the Commission initiated proceeds to bilateral the settlement was negotiated through negotiations between ADR and that the settlement cannot be an Alternative Dispute Resolution the respondent or used as a precedent for the settlement of (ADR) pilot project to resolve certain representative and a other cases. If the Commission fails to enforcement matters. It recently made representative of the approve a settlement arrived at between ADR office. a respondent and the ADR office, the the project permanent. matter is dismissed. If a settlement is reached in negotiation, If the negotiation and mediation the area where the committee resided it will be submitted to the Commission processes fail to produce a settlement, or conducted business. If a respond- for approval. If not, the ADR process the case is returned to the General ent fails to pay the civil penalty, the proceeds to mediation. Counsel’s Office for handling through Commission may either sue the respond- the normal enforcement process. At ent directly to collect the penalty or If an ADR matter proceeds to media- this point, any applicable statute of transfer the case to the U.S. Department tion, the ADR office will forward to limitations begins to run again. of the Treasury for collection. the respondent a list of three proposed mediators, all of whom are senior, The Bipartisan Campaign Alternative dispute resolution experienced, neutral professionals from Reform Act and the future In 2000, the Commission initiated an the private sector. The respondent has Alternative Dispute Resolution (ADR) the opportunity to choose one or The Bipartisan Campaign Reform Act pilot project to resolve certain enforce- reject all three. If the respondent became effective on November 6, 2002, ment matters. It recently made the rejects all three, the ADR office will the day after the 2002 national general project permanent. forward a second and final list of three election. The coming months and years proposed mediators. promise great change in the substance The objectives and goals of the ADR of federal campaign finance law enforce- program are to promote compliance, The respondent and the ADR ment in the United States, as the expand the tools available to the representative choose a location for Commission and the regulated com- Commission for resolving selected the mediation session, which will munity adjust to the many substantive complaints, resolve matters more generally last one day. During the changes BCRA made to the law. quickly without using the full session, the mediator will meet both However, other than making it easier Commission enforcement mechanism, jointly and separately with the respond- for DOJ to prosecute the most aggra- and reduce costs to both the FEC ent or respondent’s representative, and vated violations as felonies, BCRA left and respondents. the ADR representative, as necessary. the process by which FECA is enforced The mediator treats as confidential all virtually untouched. The procedures If the Commission determines that a respondent-mediator communications, described in this article will continue matter is appropriate for handling as i.e. the mediator does not reveal any- in place as the Federal Election an ADR matter, the respondent or thing about the communications to Commission pursues its missions of respondent’s representative will be the ADR representative without the encouraging voluntary compliance contacted by a representative of the respondent’s permission. Moreover, no and enforcing the law.

24 Electoral Insight NOTES

1. There are some exceptions. Most notably, constitutional issues they raise can be U.S. federal law prohibits foreign nationals – found in Richard Briffault, “Soft Money, essentially meaning individuals who are Issue Advocacy and the U.S. Campaign neither U.S. citizens nor green card hold- Finance Law,” Electoral Insight, May 2002, ers, and corporations or other non-natural pp. 9–14. persons that are organized under non-U.S. 7. BCRA’s enhanced criminal penalties are law or otherwise under foreign control – codified at 2 U.S.C. ss. 437g(d)(1)(A) and from making contributions or expenditures (D). The longer statute of limitations in connection with elections for federal, for criminal prosecutions is codified at state or local office. A number of specific 2 U.S.C. s. 455(a). requirements that are beyond the scope of this article apply to the establishment of 8. A judge of the U.S. District Court for the a political action committee by a U.S. District of Columbia held in 2001 that the subsidiary of a foreign corporation, or to Act’s confidentiality provision extends direct or indirect contributions from the beyond closure of the matter and prevents subsidiary’s corporate treasury to state and the Commission from making public all local candidates. but a very limited range of materials relat- ing to a MUR after the MUR is closed, 2. 2 U.S.C. ss. 431– 455. AFL-CIO v. FEC, 177 F. Supp. 2d. 48 3. 26 U.S.C. ss. 9031–9042. (D.D.C. 2001). Prior to the decision, the Commission had always made public most 4. 26 U.S.C. ss. 9001–9013. of the investigative files in enforcement 5. However, DOJ has had some success using matters once they were complete. Pending more general statutes to bring felony pro- review of this decision by a U.S. Court of secutions in cases where reimbursed Appeals, the Commission is complying contributions have been made through with it with respect to all newly closed “straw donors” in attempts to disguise enforcement matters. the identity of the true contributor 9. Under BCRA, civil penalties for knowing and/or evade FECA’s limitations and and wilful violations of the prohibition prohibitions. on reimbursed contributions will now be 6. Pub. L. 107-155, 116 Stat. 81 (2002). a minimum of three times the amount of BCRA introduced a number of important the violation and a maximum of 10 times substantive amendments to FECA, includ- the amount of the violation, 2 U.S.C. ing a ban on the receipt or spending of s. 437g(a)(6)(C). This represents the non-federal funds (or so-called “soft first time Congress has provided for money”) by national political parties, mandatory minimum civil penalties 2 U.S.C. s. 441i(a); new restrictions on for violations of FECA. the receipt and spending of such funds by state and local political party committees (which typically conduct activities that affect both federal and non-federal elec- tions), 2 U.S.C. s. 441i(b); and new restrictions on the sources of funding for what BCRA calls “electioneering commu- nications,” or broadcast advertisements aired in close proximity to elections that refer to candidates for federal office with- out using words of express advocacy and are targeted to the constituency from which the candidate is seeking election. 2 U.S.C. ss. 434(f)(3) (definition), 441b(c) (restriction on source of funds). More on BCRA’s substantive provisions, the reasons Congress passed them, and the

March 2003 25 Electronic Voting Methods Experiments and Lessons

Daniel Guérin Senior Analyst, National and International Research and Policy Development, Elections Canada Asifa Akbar Analyst, National and International Research and Policy Development, Elections Canada

Digital information and communication technologies groups and other matters. Many countries and sub-national tend to have an extensive, transnational reach, may be governments are currently addressing these concerns and accessed from almost any location at any time of the day, how barriers could be surmounted so that Internet/on-line and have the capacity to be used for various kinds of voting may be implemented as an effective alternative transactions, commercial and otherwise. In this climate voting method. of technological development, many governments have begun exploring and undertaking so-called e-(electronic) This article examines recent global trends in voting and democracy initiatives. voter registration through electronic means, with a focus on developments in the use of on-line/Internet voting and Developments in the electronic or digitized administration voter registration to elect government representatives. The of elections and electoral processes, particularly the use examination is based on an environmental scan of recent of on-line technologies in voting and voter registration, developments (from September 2001 to September 2002) should be seen within the broader context of debate in e-voting and e-voter registration in various countries. about public participation in the democratic process.1 Our purpose is to highlight and discuss the major themes It is suggested, for example, that measures to enhance the and issues emerging from these developments. accessibility of the electoral process could help encourage more people, including youth, to exercise their right The term e-voting, according to a recent report, may to vote. encompass a range of methods, from electronic counting of paper ballots, to voting by direct recording electronic Voting in a secure environment by methods that protect machines (DREs), to wide-scale remote voting by electronic the privacy of voter information, ensure ballot secrecy and means. DREs may include touch screen systems or PC-based are accessible to all eligible electors is the cornerstone of technologies that use screens and keypads to register votes. democratic elections, as articulated in the International The machines may be in the form of static or mobile kiosks Covenant on Civil and Political Rights and other interna- located at, or transported to, various public sites to facilitate tional legal instruments.2 voting in, for example, the workplace, hospitals and seniors’ homes.3 Remote voting by electronic means (RVEM), that In the context of the use of on-line/Internet and other is, e-voting from places other than supervised polling stations, electronic technologies for electoral events, the Internet as may include voting by Touch-Tone telephone (either land a global or transnational information and communications lines or mobile phones), SMS (short message service) text medium raises a unique set of concerns about security, pri- messaging, interactive digital TV (iDTV) and voting over vacy, ballot secrecy, accessibility for different socio-economic the Internet.

26 Electoral Insight Elections Canada examines October 2001, was a seven-month program and is contained in the report on-line voter registration study conducted by a range of central Modernising Elections: A Strategic and local governments as well as Evaluation of the 2002 Electoral Pilot Before reporting on developments private agencies to examine the possi- Schemes.5 The evaluation aims to draw elsewhere, it should be noted that the bilities of implementing electronic various implementation lessons from feasibility of an on-line voter registra- voting. This study looked at the the pilot projects and is meant to serve tion system is being examined by potential for, as well as the implica- as a stepping stone in the testing of Elections Canada. A study provided in tions of, implementing various forms on-line and other electronic and November 2002 by CGI Information of electronic voting and vote counting, alternative voting methods. Systems and Management Consultants including via the Internet. The Inc. found that implementing on-line research findings in the report According to the Electoral Commission, voter registration is feasible for Elections the e-voting pilots generated a great Canada, assuming legal and user deal of positive feedback from voters, authentication issues can be resolved. candidates, agents and polling station The feasibility study reflects Elections staff about the convenience and ease Canada’s commitment to exploring of use of new voting methods. In terms new mechanisms to facilitate the of security, in e-voting as well as other processes by which electors add, update (all-postal) pilot areas, much effort was or confirm their elector information made to prevent fraud and other between and during electoral events. breaches of security.6 In areas where electronic vote counting was adopted, The study was based on consultations ballot papers were printed in special with internal and external stakeholders ink, and counting machines rejected and an environmental scan of similar The Implementation of Electronic Voting papers not printed with this ink. initiatives in Canada and around the in the UK, published by the Local world. It sought to identify the opera- Government Association of the U.K., The Commission states that, tional, legal, technical and privacy were meant to pave the way for Britain’s compared with conventional methods considerations associated with the first “e-enabled” general election by of voting, there was no evidence development of an on-line voter regis- 2008. The report concludes that the to suggest that any of the e-voting tration system and to recommend a implementation of e-voting may intro- procedures led to increased rates of strategy for implementing such a system. duce greater flexibility as well as impersonation or other electoral convenience into the electoral process, offences. But the Commission does United Kingdom and would also help modernize the warn that, if public concerns about electoral system. Implementing fraud were to grow, this could lessen At the national level, many countries e-voting is a complex endeavour, it public confidence in the use of e-voting are now considering the possibility of emphasizes, but one that ought not to mechanisms. To provide reassurance to implementing full-scale electronic- compromise democratic principles of voters, it suggests that in the future a enabled general elections. A number freedom and fairness in electoral set of technical criteria be established of countries are first trying e-voting processes.4 against which pilots may be judged for at the local level, in order to identify security. problems and potential barriers that The second and related initiative may have to be overcome before apply- involved the piloting of alternative The U.K. Electoral Commission asserts ing e-voting on a wider electoral scale. methods of voting, including all-postal that remote voting is more convenient and multi-channel/electronic voting, than traditional polling stations for Two significant initiatives to examine across 30 local councils during the many voters, and that, over time, the feasibility of electronic voting May 2002 local elections. An evalua- remote voting is likely to become the (including electronic voter registration) tion, including recommendations for norm for most elections.7 “In the recently took place in the United future pilots, prepared by the Electoral medium term, remote voting may be Kingdom. The first, launched in Commission was part of this pilot through postal voting, but over the

March 2003 27 longer term – as Internet access and other governments have also digital television ownership grow – begun piloting the use of on- technology-based schemes are likely to line mechanisms to conduct increase,” it observes. Nevertheless, referendums and legislative the Commission regards it as impor- elections. Such experiments tant to retain, for the foreseeable are being undertaken at future, the option of voting in polling traditional polling stations stations along with “remote” and other and other public sites such electronic voting methods. as libraries and shopping centres, from home and the While the May 2002 experience workplace, as well as from appeared to be satisfactory, the other more remote locations Electoral Commission indicates that overseas. further pilots are definitely necessary means of voting. Three of these are: “to tease out a number of issues and At the international and multinational the National Science Foundation further establish the security measures levels there also have been develop- report, the California Task Force on necessary to protect these systems from ments in this area, involving the Internet Voting, and the report of the attack and ensure public confidence.”8 consideration and implementation General Accounting Office. These In light of the success of the 2002 of on-line voting for electoral events. studies concur that Internet voting at pilot projects, the U.K. Government One major initiative is the CyberVote polling sites may be feasible in the near has announced its intention to con- project sponsored by the European term, but that many technological and tinue on-line voting trials by inviting Union (EU). It seeks to develop a voter security concerns, such as ballot local councils to submit bids to run universally applicable on-line/Internet secrecy and privacy, the prevention of innovative voting pilots in this year’s voting system to facilitate e-voting intrusions and accidents and the provi- local elections. These will include within the EU. The E-Poll project is sion of equal access to user-friendly voting by the Internet, by mobile and another multina- technology, must touch phone, interactive digital tional on-line and first be resolved.11 television or by post.9 e-voting initiative in the process of In the Australian The question of electronic voting was being piloted in context, two also examined by the Independent at least three noteworthy Commission on Alternative Voting European coun- reports are: Methods established by the Electoral tries: Italy, France Electronic Voting Reform Society. Its February 2002 and Poland. and Electronic report, Elections in the 21st Century: Counting of Votes: From Paper Ballot to E-Voting, was Australia’s A Status Report,12 based on a study that examined new On-line Council a joint endeavour methods of voting, including on-line is another exam- of the Victoria voting. It makes recommendations on ple of a national forum that has been Electoral Commission and the the importance of ensuring security actively discussing major issues related Australian Electoral Commission and secrecy of the ballot as well as to the implementation of electronic, (March 2001); and Electronic Voting: continued public confidence in the especially on-line, voting. It is Benefits and Risks (April 2002),13 electoral process.10 addressing such considerations as equal published by the Australian Institute access to Internet technology and the of Criminology. The former examines Recent developments in so-called “digital divide.” the status of e-voting in the U.S. and other countries then discusses the feasibility of, and Several studies from the United States possible context-specific factors to be The Netherlands, the United States, have examined major issues and con- considered in, implementing various Australia, New Zealand, Brazil and cerns about on-line and other electronic forms of electronic voting in Australia.

28 Electoral Insight The latter report as security, and/or public key cryptography and aims to test the secrecy and digital signatures. effectiveness of privacy, electronic voting accessibility, The impact of e-voting methods on in satisfying the and public ballot secrecy is also a major concern. requirements of free awareness and Ballot secrecy may be compromised in and fair elections public confi- a number of ways in the private sphere and concludes that dence, in a of the home. In the U.K. it has been new e-voting tech- bid to maintain noted that voting by Internet or digital nologies have the the integrity of TV, unlike by paper ballots, means potential to both free and fair that voting is more susceptible to the facilitate and hinder democratic “gaze of others.”14 There may also be electoral fraud. elections. But the issues of the cost- intentional or unintentional influence effectiveness per ballot, the need to or sometimes outright coercion of vot- Possible lessons from ensure the timeliness, accuracy, ers by other family members, which recent initiatives authentication and verifiability of can compromise voter autonomy. e-ballots, as well as the need to review In the quest to test and/or implement and possibly revise electoral laws, have Another concern is the cost- on-line and other electronic methods of also emerged as important concerns. effectiveness of such schemes. Countries voting in public elections, many coun- have tended to measure the cost- tries have recognized the importance of The main concerns about security effectiveness in terms of cost per vote, identifying context-specific barriers to have generally been that eligible that is, by comparing the amount of various forms of e-voting. Nevertheless, voters should be allowed to cast their money and other resources spent on a certain shared concerns and considera- ballots in an unhindered, safe manner; particular initiative with the number tions seem to have emerged across and that, once votes are cast, they be of voters who turned out to vote using countries that are experimenting with recorded and counted accurately. To a particular e-voting method. In the electronic voting technologies. The prevent major security risks posed by May 2002 local elections in the U.K., experiences of various countries provide computerized voting, such as third- turnout in the pilot areas was useful lessons and ways of overcoming party interference through computer 38.7 percent, compared to 32.8 per- hurdles to the implementation of hacking, studies in Australia have cent in all local authority areas. The various e-voting systems. recommended the installation of Electoral Commission’s report con- “firewalls” and other internal controls cluded: “In general terms, the pilots One major recommendation has been in government computer systems. appeared to provide good value for that implementation ought to follow Maintaining an accurate electoral roll money in terms of the cost per voter an incremental or phased-in approach has also been recognized as essential to as compared with previous years.” that allows careful examination of par- an efficient voting system and a means As for the pilot Voting Over the ticular problems and issues associated of discouraging electoral fraud. Internet (VOI), a project of the U.S. with different forms of e-voting. In Department of Defence’s Federal other words, there should not be large- Effective means of voter identification, Voting Assistance Program held during scale implementation of e-voting, and of ensuring security and verifiability the November 2000 presidential especially RVEM, until issues of of votes, are also major concerns. The elections, the Pentagon received security, secrecy, technological United Kingdom, the United States, severe criticism in light of the cost of penetration and voter capacity have Australia and other countries have US$6.2 million and the fact that only been adequately addressed. begun experimenting with various 84 voters participated. technological approaches to the proper Most recommendations from various identification of voters at the time of Another important issue for countries countries with regard to the imple- voting, through the use of such methods considering e-voting, including on- mentation of e-voting have focused as smart cards, PIN numbers, biometric line voting, is the need to make (with minor variations) on issues such (signatures, fingerprints) authentication, appropriate legislative changes to

March 2003 29 permit not only further testing but prior to rigorous and continuous pilot voter information, organizational and also the wider application of such testing and research. It is not yet fore- technological capacity, availability as voting methods. seeable that electronic means will well as accessibility of technology to completely replace conventional citizens, and voter capacity to use such In general, researchers and public methods of voting. E-voting, particu- systems are major considerations that bodies that have examined these larly Internet voting, is considered must be kept in mind by those respon- issues are recommending a gradual as a complementary alternative to sible for the implementation of phased-in implementation approach. traditional paper ballot voting in a on-line/Internet voting. In the mean- The implementation of wide-scale multi-channel system of voting that is time, useful lessons can be learned e-voting, including remote electronic being fairly widely advocated in the from pilot projects and experiments voting in general elections, is increas- U.K., U.S., Australia and elsewhere. such as those highlighted in this ingly being viewed as feasible in the article. medium term and may even become Ensuring security of systems, the ability the norm in the longer term, but not to maintain the secrecy of ballots and

NOTES

1. OECD. 2001. “Citizens as Partners, 10. “Elections in the 21st Century: From Information, Consultation and Public Paper Ballot to E-Voting,” by the Participation in Policy-Making,” OECD Independent Commission on Alternative Publications, Paris. Voting Methods (London: The Electoral Reform Society, February 2002). 2. See International Covenant on Civil and Political Rights (http://www.hri.ca/uninfo/ 11. See National Science Foundation press treaties/3.shtml). “The right to participate release of report: “Panel Calls for Further in public affairs, voting rights and the Study of Security and Societal Issues” right of equal access to public service” (www.Internetpolicy.org/media/ (Art. 25): December 7, 1996. CCPR PR01-18.html). See also “Study cautions General Comment 25. (General against Net voting,” USA Today, February 6, Comments – from the Committee for 2002. See also “Do Elections Need a Civil and Political Rights of the Office of Technological Upgrade? Government study the United Nations High Commissioner considers whether the Net could help restore for Human Rights). voter confidence,” Ellie Phillips, Medill News Service (pcworld.com), November 26, 3. “Implementation of Electronic Voting in 2001. See also “Congressional Panel the UK” (London: Local Government Addresses Solution for Disenfranchised Association Publications, May 2002), p. 13. Military Voters; Technology Exists Today 4. Ibid. p. 71. for Secure On-line Military Voting,” Business Wire, October 30, 2001. 5. “Modernising Elections: A Strategic Evaluation of the 2002 Electoral Pilot 12. Colin Barry, Paul Dacey, Tim Pickering, Schemes,” United Kingdom Electoral Debra Byrne, “Electronic Voting and Commission, 2002. Electronic Counting of Votes: A Status Report” (Victorian Electoral Commission 6. Ibid. p. 50. and Australian Electoral Commission, March 2001). 7. Ibid. p. 78. 13. Russell G. Smith, “Electronic Voting: 8. Ibid. Benefits and Risks Trends and Issues 9. Office of the Deputy Prime Minister Press in Crime and Criminal Justice” (Canberra, Release, “May 2003 Elections to Continue ACT: Australian Institute of Criminology, Online Voting Trials” (www.odpm.gov.uk/ April 2002), (www.aic.gov.au). news/0209/0086.htm). 14. “Implementation of Electronic Voting in the UK,” p. 61.

30 Electoral Insight Ellen Louks Fairclough Canada’s First Female Federal Cabinet Minister

Wayne Brown Managing Editor, Electoral Insight, Elections Canada

The Rt. Hon. Ellen Louks Fairclough. The addition of the title “Rt. Hon.” to her name may appear strange given that, in Canada, that title has normally been reserved for prime ministers, governors general and justices of the Supreme Photo: Special Collections, Hamilton Public Library Court of Canada. And most of them have been men. However, on Canada Day in 1992, Queen Elizabeth II bestowed that title on Ellen Fairclough, almost 30 years after she left Parliament. It recognized her life of many achievements, the most notable being that she was the first woman to enter the federal Cabinet, on June 21, 1957. She was also elected to the House of Commons five times, a record unmatched by any other woman during the 1950s and 1960s. In addition, Fairclough was responsible for Indian Affairs when, in 1960, many Aboriginal Canadians were given the right to vote. In January 2003, she celebrated her 98th birthday. Ellen Fairclough was elected to the House of Commons five times and The early years as Minister of Citizenship and Immigration introduced historic legislation giving Status Indians the right to vote in federal elections. She was born Ellen Louks Cook, in Hamilton, Ontario, on Saturday, January 28, 1905, the third of five children in a times’ descended on Hamilton, which they seemed to do fifth-generation Canadian family. On her mother Nellie’s periodically.” When Ellen was nine, the family could not side, she was descended from Huguenots and United Empire even afford each child’s school fees of 10 cents per month. Loyalists who moved to Norfolk County from Vermont in 1790. Her paternal ancestors emigrated to Ancaster, Upper A life of long hours of work began early. When Ellen was Canada, in 1802, from Lancaster, Pennsylvania. Her father, 13, a flu epidemic swept the country. When most of her Norman Ellsworth Cook, had farmed in Norfolk County, family fell ill, she was spared and, while caring for four very but the light soil did not produce sufficient crops and, in ill people, also had to prepare three meals a day for her 1904, he moved his family to a house on the western edge father and two boarders, make beds, and give medication of Hamilton. In her memoirs, Fairclough states, “Although and other general nursing aid. She usually obtained high we never went hungry, we were not an affluent family. marks at school, but by today’s standards did not receive Money was often hard to come by, especially when ‘hard a lot of formal education. Her family could not afford

March 2003 31 “collegiate,” so instead she enrolled in Fairclough a commercial studies program. Since serves taking a streetcar would cost five cents, Hamilton she walked to school. She would learn secretarial work, which would pave the Fairclough’s first way for a series of bookkeeping jobs. attempt to win Sundays consisted of morning attend- election was at ance at Zion Methodist Church, bible the municipal study, Sunday school in the afternoon, level when, in

playing the piano and singing – but 1945, Tony Photo: Special Collections, Hamilton Public Library only religious music. In 1921, at the Evans, the age of 16, at a church-related social local Tory boss, function, she met Gordon Fairclough. demanded she Ten years later they would elope to run for a seat on marry in Buffalo, New York. Their Hamilton’s coun- only child, Howard, was born cil. She firmly 10 months later. refused. Evans telephoned In those years, Fairclough does not Fairclough’s Ellen Fairclough at the 1959 opening of a model home in Hamilton. appear ever to have thought of someday husband and trying to be elected to Parliament, but announced to him that she was going no women in the legislature? Are she did serve in the trenches of the to seek election. In her memoirs, Ellen women so insignificant that they have Conservative Party. She and Gordon says Gordon “thought this is a great no desire to be heard? If women were joined the Junior Conservative Club idea, and that was that. Of course, I in the legislature a lot of things that are and she would become the president of could have stubbornly resisted the dirty would be cleaned up, they wouldn’t the local Young Conservatives organi- ‘call,’ but I was actually quite intrigued stand for them. Above all we must zation and vice-president of the Young by the possibility of a political career.” lend our courage and trust in a mass Conservatives of Ontario. Actually, she lost by a mere three votes confidence in our ability to achieve.” and stated, “No one can ever tell me During a 10-year period, Fairclough that a single vote does not count!” A few Fairclough was re-elected three times held many clerical and bookkeeping weeks later, when an alderman resigned, to Hamilton’s council and, in 1949, jobs. In Saturday’s Child: Memoirs of the council appointed Fairclough to became the city’s deputy mayor. Canada’s First Female Cabinet Minister, the seat, which paid a salary of Margaret Conrad has written that $400 per year. She was also active in She loses and wins “Ellen was an ambitious and enthusias- a number of voluntary organizations as tic recruit to the new bureaucratic Dominion Secretary of the United A federal election was held in 1949 processes, increasingly making her Empire Loyalists’ Association, Provincial and Fairclough attempted her next mark by her ability to ‘fix’ people’s Secretary and Vice-President of the step up the political ladder. She was muddled financial records.” She took Imperial Order Daughters of the Empire unanimously nominated to be the several correspondence courses and (IODE) and a regional chair of the Progressive Conservative candidate in earned accreditation as a general Zonta International women’s group, the riding of Hamilton West. But she accountant, making her part of a very which included members from American was running against a Liberal Cabinet male-dominated profession. Her states and Canadian provinces. minister, Colonel Colin Gibson, who accounting practice grew and she had held the seat for almost a decade. became the Secretary for the Canadian A 1943 edition of the Fort William Daily Fairclough suspected party officials had Wholesale Grocers’ Association. Those News quotes a typical passage from one encouraged her to run as a way of duties included visits to Ottawa to of the many speeches she made to appealing to women voters and that, meet departmental officials and groups across the province. “Why in in fact, they saw no chance of a members of Parliament. these days of co-operation, are there Conservative winning there. She lost

32 Electoral Insight by more than 3 000 votes and the thankful that, unlike most of her male A few days after the June election, Liberal party won the national election. colleagues, she did not have to share one of those Diefenbaker was likely to space with another member. “In my include in his Cabinet, Dr. William The following year, Colonel Gibson early days in Ottawa I had more sup- Blair, died. “At the cemetery, was appointed to the bench and a port from the men in my party than Diefenbaker motioned with his head by-election was called. Fairclough I did from the women. Many of the for me to come over to his side,” she soon discovered that someone was women, I think, questioned my ability has stated. “He asked me if I could see telephoning all the delegates to the to do the job, in part because they him later in the day. I said, ‘Yes, when?’ nominating meeting to persuade them could not imagine themselves func- We finally decided upon 6:00 p.m., in to vote for someone else to carry the tioning in such a position.” She was his office. I was there on time but he party’s banner. Fairclough believed asked to serve as the Opposition kept me waiting while various people, the president of the local Progressive spokesperson on labour, a good fit with mostly members of his staff, ran in and Conservative Women’s Association her other duties as a member for a out of his private office.” A half-hour was responsible, and that some local large, industrial city. Fairclough spoke later, Diefenbaker told her, “I have to party officials did not want a female frequently in the Commons and called form a Cabinet, and it looks as if I candidate. Regardless, most of the for old-age pensions at the age of 65, shall have to form it largely of my other women in the Association did rather than 70. However, some media enemies.” Fairclough has said she support her and she defeated her male commentators were more interested in then denied his accusation she had competitor by a count of more than her clothing and personal life than in supported one of his rivals at their three to one. In the by-election what she said about policy. Undaunted, party’s leadership convention. She campaign itself, she claimed the she introduced a private member’s bill promised the complete loyalty Opposition in Ottawa needed to be to require equal pay for equal work Diefenbaker requested and he told strengthened and accused the Liberals in areas under federal jurisdiction. Fairclough she could be the Secretary of failing to implement universal During her second term in Parliament, of State in his Cabinet. old-age pensions and to reform unem- after the 1953 general election, the ployment insurance. On the election Government enacted similar legisla- Fairclough was surprised because she eve, Fairclough’s campaign signs were tion. The media gave Fairclough much had expected a weightier portfolio. covered by those of a competitor. of the credit. Her first inclination was to turn him Overnight, her supporters worked down but, instead, left Diefenbaker diligently to counter that effort, but by Fairclough enters Cabinet with only a commitment to let him morning very few signs for either can- know her answer. George Drew, didate were left standing. The May 15, In 1957, following a general election, a former Ontario premier and 1950 ballot count seesawed all evening Ellen Fairclough became the first Diefenbaker’s predecessor as leader of but, in the end, Fairclough, by a mar- woman in Canada’s history to be sworn the federal Progressive Conservatives, gin of just over 400 votes, became only into the federal Cabinet, but it almost then counselled her not to reject the the sixth woman in Canadian history didn’t happen. John Diefenbaker took chance to become the first woman to be elected to the House of Commons. power as the Prime Minister of a minister in the federal Cabinet. The She told Austin F. Cross of Canadian minority Progressive Conservative next day, she accepted Diefenbaker’s Business that her husband, Gordon, government. He had pledged to offer. However, as Mary Lowrey Ross had given her great support. “He made appoint a woman to the Cabinet. He wrote several months later in Saturday more than half my (campaign) plans; had only two in his caucus to choose Night magazine, “There have been a had wonderful ideas about publicity.” from and Fairclough had the longer few to point out that the Secretary service and committee experience. of State position is a minor Cabinet Fairclough would be an Opposition In Saturday’s Child, Fairclough recalls appointment and hardly adequate member in the Commons and the her belief that Diefenbaker did not to Mrs. Fairclough’s talents.” only woman with a seat there in that like her. “He also had not forgiven me session of Parliament. Her small pie- for refusing to support him in his bids On June 21, 1957, Fairclough was shaped fifth floor office was jammed for party leadership in 1942, 1948 sworn into Cabinet. Canada’s 90th in beside an elevator, but she was and 1956.” birthday was just a few days away and

March 2003 33 she was surprised to discover no Indian Affairs was also under including the Six Nations Indian celebration was planned for Parliament Fairclough’s jurisdiction and, in 1960, Band. The Blackfoot made her an Hill on July 1. She was told any festiv- she introduced the historic legislation honorary chief. ities would be poorly attended because giving Status Indians the right to vote local residents would be at their in federal elections. In a 1973 inter- Fairclough has written that, while in cottages or vacationing elsewhere. view with Peter Stursberg, she said politics, her colleagues usually treated Fairclough would not accept that “I think that was long overdue and her as just “one of the boys,” but on explanation and ordered planning to one occasion she was excluded from begin for the first Dominion Day Cabinet. Ministers were reviewing the celebrations in front of the Parliament case of Stephen Truscott, who had Buildings the next year. been convicted of the rape and murder of a young girl. Fairclough obeyed She recalls that pressure for a distinc- Diefenbaker’s request that she leave tive Canadian flag was also on the rise, the room, rather than see graphic with thousands of suggestions coming photos of the deceased. in from across the country. “The designs came in all sizes and colours and ran Fairclough brought in reforms in the gamut from childish scribbles on Photo: Special Collections, Hamilton Public Library immigration policy to try to eliminate scrap paper to a beautifully embroidered race and ethnic origin as grounds for white satin effort. I recall taking some discrimination. But the intense con- of them with me on speaking engage- troversy that accompanied post-war ments.” However, the Diefenbaker immigration policy and pressure from government would fall from power the Opposition, media and the public before a new flag was chosen. often left her close to resigning. “However, I had my personal staff to As official Ottawa got used to having a consider, all of whom would have been female Cabinet minister, her husband out of a job if I quit. Moreover, I knew Gordon became accustomed to often that if I threw in the towel, the criti- being the only male among the spouses cism would have been levelled at all of ministers at social events. He women – ‘She couldn’t take it.’” Instead, enthusiastically took part, providing Ellen Fairclough was sworn into Cabinet as she “stuck it out to the bitter end.” more examples of the full support he the Secretary of State, on June 21, 1957. always gave her. She is pictured here with the Great Seal of The end was very difficult. The Canada used on all state documents for Government devalued the Canadian authority and authenticity. At Citizenship and dollar to 92 cents American, which Immigration I was very happy that it happened was not well received by many voters. in my time.” She went on to state, In the 1962 election, Fairclough In the 1958 general election, the “Although some Native leaders feared was re-elected, but the Progressive Progressive Conservatives won the that enfranchisement was a device to Conservatives won only enough seats largest majority in Canadian history undermine their treaty rights, I made for a weak minority government. (208 of 265 seats). Fairclough was very it very clear that this was not the case. Fairclough was moved to the Postmaster easily re-elected and appointed to the No Indian, or any Canadian, is forced General’s portfolio. The Cuban missile much tougher post of Minister of to vote, but it is a privilege that every crisis erupted and the Cabinet was Citizenship and Immigration. In those Canadian citizen has a right to divided on how to respond to American days the position included responsibil- exercise.” She has estimated that, calls for support and on whether ity for the Royal Canadian Mint, the as Minister, she visited as many Canada’s new weapons system would National Film Board, the National as 100 Native reserves in Canada. include nulear warheads. Some Gallery and the Public Archives/ Fairclough would later receive many ministers were thought to be plotting National Library. honours from Aboriginal groups, to oust Diefenbaker, and his government

34 Electoral Insight was defeated in a vote in the House On February 20, 1978, the House of 75 000-word memoir that would speed of Commons. Commons unanimously passed a reso- my progress.” In 1995, those memoirs lution congratulating Fairclough for were published and Fairclough was Fairclough asked Diefenbaker for an “the significant contribution she made installed as a Companion of the appointment to the Senate. “Despite to Canadian political life, for being, Order of Canada. being the first female Cabinet minister, 20 years ago today, the only woman I was not to be one of the chosen few,” in Canadian political history to serve Ellen Louks Fairclough never saw her- she has written. On April 8, 1963, as Acting Prime Minister.” The self as an ardent feminist but always another general election brought the latter refers to a very brief period believed that women could contribute Liberals to power and Fairclough was Diefenbaker left her in charge of the more to business and political life. personally defeated by 2 800 votes. Government while he was travelling. She proved it with her own career. “Although I never started out to be Life after Ottawa In the introduction to Fairclough’s the ‘first’ anything, it turned out that memoirs, Margaret Conrad recalls, I was the first woman in many areas “At the age of 58, most people begin in 1993, she was watching the of public life,” she has stated. “There to think of retirement, but not Ellen Progressive Conservative Party’s were not many others to follow, so Fairclough,” wrote Margaret Conrad. leadership convention and saw the I just followed my own instincts. As Corporate Secretary, “she helped 88-year-old Fairclough move the These served me pretty well over the make Hamilton Trust and Savings nomination of Kim Campbell, who years, as did my willingness ‘to work Corporation into a force to be would become the country’s first hard for a living.’ And when all is reckoned with in Ontario financial female prime minister. She regarded said and done, it has been a pretty circles and continued her active Fairclough’s life as an untold story and satisfying life.” involvement in a wide range of boards, the next day asked Fairclough if she foundations and voluntary organiza- could write her biography. “She tions.” She also chaired Hamilton replied immediately. Not only was she Hydro and served as treasurer of Zonta prepared, without having met me, to International. let me be her biographer; she had a

REFERENCES

Canadian Who’s Who, University of Toronto Ross, Mary Lowrey. “Ellen Fairclough: First Press, Toronto. Woman in the Cabinet.” Saturday Night. Vol. 72, No. 18 (August 31, 1957), pp. 14–15, 34. Conrad, Margaret. “Not a Feminist, But … The Political Career of Ellen Louks Fairclough, The Hon. Ellen Louks Fairclough. Word Affairs. Canada’s First Female Cabinet Minister.” Vol. 24, No. 3 (November 1958), p. 13. Journal of Canadian Studies. Vol. 31, No. 2 (Summer 1996). Cross, Austin F. “Parliamentary Personalities.” Canadian Business. Vol. 23, No. 9 (September 1950), pp. 94, 106–110. Ellen Fairclough interview by Peter Stursberg, March 9, 1973. Fairclough, Ellen Louks. Saturday’s Child: Memoirs of Canada’s First Female Cabinet Minister. Toronto: University of Toronto Press, 1995, 179 pages. Ottawa Public Library, Biography Resource Centre.

March 2003 35 Electoral News in Brief

Government Proposes Major Changes to Political Financing

The federal government has introduced legislation to make the legislation would provide for electoral district associations major reforms to the rules governing the financing of political and party nomination and leadership contestants to register parties and candidates and to extend them to certain other with and report the contributions they have received and political participants. Bill C-24, An Act to amend the Canada their expenses to the Chief Electoral Officer. Elections Act and the Income Tax Act (political financing), was introduced in the House of Commons on January 29, 2003, The government says these changes would enhance the by the Honourable Don Boudria, Minister of State and fairness and transparency of the electoral system. “Canadians Leader of the Government in the House of Commons. If want access to full information about how much political passed, it is to come into force six months after receiving parties and candidates collect, and whom they collect it Royal Assent or on January 1, 2004, whichever is later. from,” stated Mr. Boudria, in a January 29, 2003, press release. “We are determined to eliminate even the percep- This bill tion that individual Canadians have less influence than addresses a corporations and unions in our electoral system.” number of issues covered in Contributions Modernizing the Corporations, unions and associations would be barred Electoral Process, from making contributions to any registered party or the Chief leadership contestant. However, they would be allowed Electoral to contribute up to $1 000 in total per year to a party’s Officer’s 2001 candidates and nomination contestants, as well as its Canada’s Parliament Buildings, Ottawa report to registered electoral district associations. Under the pro- Parliament. In it, he made a number of recommendations posals in Bill C-24, an individual’s contributions to a to improve transparency in election financing by extending registered party and its registered electoral district associa- disclosure obligations to electoral district associations, and tions, candidates and nomination contestants would be party nomination and leadership contests. He also recom- limited to $10 000 per year. Individuals would also be mended limits on all political contributions, other than to restricted to a maximum of $10 000 in donations to the leadership contestants, and on spending in party nomina- leadership contestants of a party, during a leadership race. tion contests. The Chief Electoral Officer underlined the Currently, political contributions can be made by individu- right of Canadians to know who is financing the political als, corporations, unions and other organizations, and there process in Canada, which he said is essential “for maintain- are no limits on the amounts. ing the trust of Canadians in the integrity of the process and their continued participation in it.” Greater disclosure of sources and amounts Transparency would be further enhanced by extending Overview of proposed changes disclosure requirements to registered electoral district The government’s bill contains provisions that, with minor associations and leadership and nomination contestants. exceptions, will allow only individuals to contribute to Currently, only candidates and registered political parties candidates, political parties, their local associations, and are required to disclose sources and amounts of contributions. nomination and leadership contestants. The proposed All contributions of more than $200 and the name and amendments would also require greater disclosure of sources address of the person or organization making the and amounts of financing, and increase public funding to the donations would have to be reported to the Chief participants in election campaigns. As well, for the first time, Electoral Officer.

36 Electoral Insight Nomination contestants would be Their spending would be limited to current 22.5 percent to 50 percent, required to disclose that information half the amount a candidate in that to make it equal to the rate for and the expenses they incurred district was allowed during the pre- candidates. In addition, a registered within four months of the nomina- vious election period. At present, party would receive an annual tion contest. Leadership contestants only candidates and registered allowance of $1.50 per vote obtained would need to register with the political parties are subject to by that party in the previous general Chief Electoral Officer. In each of spending limits, which apply during election, provided it received either the four weeks leading up to their elections. 2 percent of the valid votes cast leadership convention, they would nationally or 5 percent in the be required to submit reports disclos- Public financing districts where it ran candidates. ing the amounts and sources of The provisions of the new bill would The allowance would be paid in contributions they had already also increase the public funding quarterly instalments. received. Finally, six months follow- available to registered political par- ing the leadership convention, they ties and make it easier for candidates Meanwhile, to encourage contri- would have to submit information to qualify for reimbursements of elec- butions by individuals, Bill C-24 about additional contributions tion expenses. A candidate would would also amend the Income Tax received and expenses incurred. need 10 percent of the votes in the Act to double the amount of an electoral district in order to qualify individual’s donation that is eligible Spending limits for nomination for reimbursement, instead of the for a 75 percent tax credit, from contests current 15 percent. The reimburse- $200 to $400. The maximum tax Bill C-24 would introduce spending ment rate on election expenses for credit for a political donation of limits for nomination contestants. registered parties would rise from the $1 275 would rise to $650.

Federal Government Appeals Ruling on Third Parties

The federal government has asked oppose the election of any one candi- and December 2002. On June 29, Canada’s highest court for permission date in any single electoral district. For 2001, Mr. Justice Cairns of the to appeal a ruling that struck down by-elections, the maximum was $3 000 Alberta Court of Queen’s Bench ruled limits on how much third parties can for each electoral district. that sections 350 and 351 of the spend on advertising during a federal Canada Elections Act, respecting third election. On February 14, the govern- The Alberta court, in a two-to-one parties’ election advertising expenses, ment requested the Supreme Court decision, ruled there was insufficient were no longer in force. In October of Canada for leave to appeal a evidence to justify the legislation’s 2000, the Chief Electoral Officer of December 16, 2002, decision by the restrictions in a free and democratic Canada, Jean-Pierre Kingsley, had Alberta Court of Appeal. Third parties society. “The government has failed to appeared as an intervenor before that are individuals and groups other than establish that the sections address a court. After the lower court ruling, he candidates, registered political parties pressing and substantial concern,” announced that in order to achieve or their electoral district associations. wrote Madame Justice Marina fair application of the Act across the Paperny. The court also overturned country, the Alberta court decision The limits were part of the new Canada sections of the law requiring anyone would be applied nationally. Elections Act that came into effect who incurred more than $500 in elec- shortly before the 2000 federal general tion advertising expenses to register The constitutional challenge to third election. Under that legislation, a third with Elections Canada. party limits was launched in June 2000 party could spend a maximum of by the president of the National $150 000 nationally on election adver- The legislation was in effect for the Citizens Coalition, Stephen Harper, tising. Of this amount, it could spend 2000 general election, but not for the before he became leader of the no more than $3 000 to promote or nine federal by-elections held in May Canadian Alliance party.

March 2003 37 Federal Prison Inmates Win Right to Vote

A Supreme Court of Canada deci- In the latest court decision, Chief sion allowing inmates of federal Justice Beverly McLachlin wrote on penitentiaries to vote in federal elec- behalf of the majority that “the right tions was quickly implemented by to vote is fundamental in our democ- Elections Canada. The court deci- racy and the rule of law and cannot sion was rendered on October 31, be lightly set aside.” The majority 2002, a day before the writs were found that paragraph 4(c) of the issued for two federal by-elections. Canada Elections Act violated the The Chief Electoral Officer of Canadian Charter of Rights and Canada, Jean-Pierre Kingsley, applied Freedoms and that this violation the Special Voting Rules for incar- could not be justified under section 1 cerated electors to inmates in federal of the Charter. The federal govern- by filling out an Application for penitentiaries. ment had argued that the voting ban Registration and Special Ballot, was a legitimate punishment in addi- which is made available through Canadians serving a term of less tion to a prison term and that each correctional institution. A staff than two years in a correctional allowing inmates to vote would member in the institution serves as a institution in Canada already had demean the electoral system. The liaison officer and helps the electors the right to vote. The Supreme challenge to the ban was first register. For electoral purposes, an Court, in a five-to-four ruling, struck launched 18 years ago by paroled inmate’s address of ordinary resi- down a section of the Canada inmate Richard Sauvé, while he was dence is not the institution in which Elections Act adopted in 1993 that serving a life term for murder. he or she is serving, but rather the barred prisoners serving terms first possible option from the follow- of two years or more from voting. An estimated 12 000 inmates are ing list: the inmate’s residence before A series of lower court rulings had affected by the latest court ruling. being incarcerated, the residence of a effectively allowed all inmates to The first opportunity for inmates to spouse or a relative, the place where vote in the 1993 and 1997 federal vote following the ruling was in the the elector was arrested or the last elections. The right for those December 9, 2002, by-elections in court where he or she was convicted serving two years or more, however, Lac-Saint-Jean–Saguenay and and sentenced. Votes are counted was revoked following a 1999 Berthier–Montcalm, in Quebec. and applied in the electoral district decision by the Federal Court of of the address an inmate has identi- Appeal upholding the validity of To vote in a federal electoral event, fied, rather than the electoral district the prohibition. incarcerated electors must register that includes the institution.

Federal Representation 2004 Update

The results of more than one year from the Chief Statistician of sections 51 and 51A of the Constitution of work by 10 independent federal Canada. Act, 1867. Based on this formula, electoral boundaries commissions the House of Commons will increase are expected to be proclaimed in Articles published in the May and by seven additional seats: three for July 2003 or shortly thereafter. The October 2002 editions of Electoral Ontario, and two each for Alberta process of readjusting electoral dis- Insight described the initial steps of and British Columbia. In all other trict boundaries, which is tied to the the process. First, the Chief Electoral provinces, the number of seats decennial census, has been ongoing Officer used the census figures to remains the same. On April 16, since March 12, 2002, when the calculate the number of seats 2002, under s. 13 of the Electoral Chief Electoral Officer of Canada allocated to each province, applying Boundaries Readjustment Act (EBRA), received the latest census return the formula and rules set out in 10 independent commissions were

38 Electoral Insight assigned the task of readjusting the When the Chief Electoral Officer becomes available, members of the federal electoral boundaries of their receives a commission’s report, he House of Commons have 30 calen- respective provinces. This date transmits it to the Speaker of the dar days to examine it and to file marked the beginning of a one-year House of Commons, who then tables objections with the Committee. period during which the commissions and refers the report to the Standing An objection must be signed by not must produce a final report [s. 20(1), Committee on Procedure and House less than 10 members of the House EBRA]. Affairs (a copy of the report is then of Commons. The Committee then posted on the Elections Canada has 30 sitting days to consider the The Chief Electoral Officer may, on Web site). While each report is in objections and return a report request by a commission, extend the Committee, members of the House to the Speaker, together with a copy time for the completion of its report for of Commons have another opportu- of the objections and of the minutes up to six months [s. 20(2)]. None nity (in addition to the public of its proceedings. This report of the commissions requested hearings) to give their feedback may include background information an extension. about the proposed changes. on redistribution, general comments by the House Com- Between June and mittee regarding the August 2002, the process and reports of proposals of each the commissions, leg- commission were islative provisions, a published in the summary of the main Canada Gazette and concerns of members, at www.elections.ca, objections filed and

Federal Represen- Photo: Commission Will Fripp, Secretary suggestions offered by tation 2004. Across members, and recom- Canada, 115 public mendations by the hearings were Committee. scheduled and approximately The Speaker refers 2 090 representa- the report (as well tions were received as a copy of the by the commissions objections and of the from individuals or At one of their public hearings, held in London, are the members of the Federal minutes of proceed- Electoral Boundaries Commission for Ontario, Dr. Janet Hiebert, the Honourable groups who wished ings and evidence of Mr. Justice D.H. Lissaman (Chairperson) and Dr. Andrew Sancton. to comment on the Committee) to the proposals. This the Chief Electoral figure is more than triple the number Ultimately, the final decision rests Officer, who sends it to the com- of representations received in 1994 with the commission in each mission for consideration. The and more than double the number province. commission then has 30 calendar in 1987. days to consider and dispose of the As of March 28, 2003, the reports objections and to provide a certified Although not all representations are from the commissions for all prov- copy of a report in which it responds heard at public hearings (approxi- inces had been transmitted to the to the objections filed by members mately 950 were heard), each Speaker of the House of Commons of the House of Commons. In commission seriously considered all for tabling before the Standing considering these objections, the representations when completing its Committee on Procedure and commission bears in mind the repre- report. Some individuals preferred to House Affairs. sentations of the public hearings forward a written representation to that preceded the report. This final the commission and some requested The House Committee began report is returned to the Chief that their representations be read at its work on redistribution in Electoral Officer for transmittal a public hearing. January 2003. As each report to the Speaker.

March 2003 39 It is expected that the proclamation order is proclaimed during that intervening period gives members and publication of the representation period, it will be in force upon the of the House of Commons, political order in the Canada Gazette will occur first dissolution of Parliament that parties and Elections Canada time between July 21 and 30, 2003 (s. 26, occurs no earlier than July 21, 2004 to adjust to the new electoral map. EBRA). Provided the representation (s. 25, EBRA). The one-year

On-line Voter Registration Feasibility Study

Elections Canada is examining gender and date of birth. Canadians delivery channels to offer the same the feasibility of developing and may choose whether or not to have services to electors irrespective of implementing an on-line voter their names listed in the Register. the communication medium used registration system. A study The information in the Register is (i.e. telephone, on-line, mail or provided in November 2002 by used to produce the preliminary in person). CGI Information Systems and lists of electors for federal elections, Management Consultants Inc. by-elections and referendums. It Elections Canada surveys con- sought to identify the operational, may also be used to produce the ducted after the November 2000 legal, technical and privacy preliminary lists of electors for general election found support considerations associated with the provinces, territories, municipalities for on-line registration has been development of an on-line voter and school boards that have signed growing, with 70 percent of electors registration system and to recom- agreements with Elections Canada, stating that they would like to reg- mend a strategy for implementing as permitted by the Canada ister to vote on-line, if technology such a system. It was based on Elections Act and provincial and allows. Support increased when consultations with internal and territorial statutes. respondents were reassured about external stakeholders and an envi- security concerns. In addition, ronmental scan of similar initiatives The study’s chief finding was that stakeholders such as Aboriginal in Canada and around the world. implementing on-line voter regis- electors, special needs electors and tration is feasible for Elections the academic community indicated The feasibility study reflected Canada, assuming legal and user strong support for on-line voter Elections Canada’s commitment to authentication issues can be registration. exploring new mechanisms that resolved. For the short term, it rec- would facilitate the processes by ommended that Elections Canada Elections Canada is presently study- which electors add, update or provide downloadable registration ing the report’s recommendations. confirm their elector information forms on-line and enable electors to The availability of an on-line voter between and during electoral confirm on-line whether they are registration system complementing events. It also followed up on a on the list of electors. For the existing paper-based registration commitment made in the Report of longer term, it recommended that methods has the potential of pro- the Chief Electoral Officer of Canada other registration transactions – viding improved service to electors, on the 37th General Election Held on being added to or removed from the reducing the number of elector calls November 27, 2000 to study “the list of electors or the Register and and transactions that occur during feasibility of secure on-line registra- having information changed – be an electoral event, and improving tion and verification” as a method implemented incrementally. The the quality of data contained in of improving the National Register report also recommended that part- the Register. of Electors. nerships be established with key agencies and initiatives such as Additional information about The Register is a database of Government On-Line to resolve Elections Canada’s on-line voter Canadians who are qualified to common security, privacy and registration strategy will be vote. It contains basic information authentication issues and that provided in future editions of about each person – name, address, Elections Canada align its service Electoral Insight.

40 Electoral Insight Elections Canada Assists Afghanistan in Preparing for Elections

Elections Canada is providing sup- The Chief Electoral Officer Commonwealth observation team port and technical expertise to the appointed Mr. Jean-Jacques Blais as in Cameroon. Mr. Blais was Deputy United Nations Assistance Mission the Head of Mission for the ERA Chairman of the Provisional to Afghanistan (UNAMA) to help project. Mr. Blais is responsible for Election Commission for Bosnia Afghanistan (Transitional Islamic the overall conduct of the ERA Herzegovina and was invited by State of Afghanistan) prepare for project. Mr. Blais is a former federal Yemen to review proposals on general elections that have electoral reform. been tentatively scheduled for June 2004. The assist- Under the Bonn ance was announced on Agreement, UNAMA will January 13 by the Chief support Afghanistan in Electoral Officer of Canada, conducting elections. The Jean-Pierre Kingsley. Canadian government, through the Canadian Under the general leader- International Development ship of UNAMA, Elections Agency, has allocated Canada is providing stra- $1.5 million in assistance tegic oversight for the for the ERA project. The Elections and Registration project will focus on five in Afghanistan (ERA) components of an electoral Project in co-operation system: institutions and with the International systems of representation as Foundation for Election established in the constitu- Systems (IFES). IFES provides minister and has been a member of tion and electoral law; election professional advice and technical seven election observation teams administration; voter registration and assistance in promoting democracy, organized by the Commonwealth, identity documents; political parties and serves as an information source the Organization of American States and campaigning; and media and on democratic development. and the United Nations. He led the monitoring.

Global Bill of Electoral Rights for People with Disabilities

Senior election administration offi- from Elections Canada were the “International agreements place a cials, disability rights experts and Chief Electoral Officer, Jean-Pierre real, positive obligation on nation activists, and parliamentarians from Kingsley, Deputy Chief Electoral states to secure electoral rights for more than two dozen countries have Officer and Chief Legal Counsel, all citizens,” stated Karen Fogg, drafted a global Bill of Electoral Diane Davidson, and Director of Secretary-General of International Rights for People with Disabilities. Operations, Luc Dumont. IDEA. The joint declaration was officially launched at a September 2002 meet- The bill resulted from the work of An International IDEA press release ing in Sigtuna, Sweden. While not a the International Institute for states: “In many new democracies, legally binding document, it outlines Democracy and Electoral Assistance election observers cite problems with the responsibility of countries to (International IDEA) and the infrastructure, in particular inade- ensure that people with disabilities International Foundation for quate physical access to polling have the same rights as other citizens Election Systems to bring together stations, as a key factor limiting in participating in the electoral concerned parties as equal partners disabled people’s ability to partici- process. Among the participants to develop such an initiative. pate in elections.” It adds that

March 2003 41 Canada and Sweden “are leading the • to have access on general terms of the bill (see www.electionaccess.org/rs/ way in ensuring that polling stations equality to the conduct of public Discussion_Paper.htm). are made fully accessible to people affairs, directly or through freely with disabilities.” chosen representatives Over the years, Canada’s electoral • to participate on general terms process has undergone many changes The Bill of Electoral Rights for of equality in the conduct to make it as accessible as possible People with Disabilities will serve as of elections to all electors. A very important a practical advocacy tool for disability • to register for, and to vote in improvement is the special ballot, organizations and others working genuine and periodic elections, which allows Canadians to vote by at the national and international referendums and plebiscites mail or in person at the office of levels to improve access to the determined by universal and their returning officer. Elections electoral process for people with equal suffrage Canada has also modified buildings disabilities. The declaration includes • to vote by secret ballot and offices used during federal elec- the right to secret voting, full physi- • to stand for election, to be elected tions to ensure that all revisal offices, cal accessibility of polling stations and to exercise a mandate once polling stations and other premises and full and equal electoral rights for elected have level access. people with mental disabilities. It also guarantees that citizens with The September conference also Additional services include mobile a physical, sensory, intellectual or approved Standards of Electoral polling stations, and information in psychiatric disability have the right Access for Citizens with Disabilities alternative formats, such as large print, and opportunity: that provide further explanation of Braille, audio-cassette and diskette.

British Columbia has new Chief Electoral Officer

Harry Neufeld was sworn in as Democracy and Electoral Assistance held the position of Chief Electoral British Columbia’s new Chief (IDEA), the International Foundation Officer since 1990. Electoral Officer on November 7, for Election Systems and the United 2002. A special committee estab- Nations Electoral Assistance Division. lished by the province’s Legislative He is responsible for the administra- Assembly unanimously recom- tion of the province’s Election Act,

mended his appointment. Referendum Act and Recall and Photo: Elections BC Initiative Act. Mr. Neufeld has 20 years of experience in electoral management, including Robert Patterson left the provincial positions with Elections BC, Chief Electoral Officer’s position on Elections Canada and the United June 6, 2002, when his term expired. Nations. He has also written articles He had been involved for 30 years Harry Neufeld, on electoral management published with administering the democratic Chief Electoral Officer by the International Institute for process in British Columbia and had of British Columbia

42 Electoral Insight Consultations on Electoral System Reform

Law Commission of Canada processes and institutions than seek- British Columbia conducts consultation ing a way to change how Canadians The British Columbia government The Law Commission of Canada has vote. announced in the Speech from the been conducting public consultations Throne on February 11, 2003, that about possible reform of Canada’s More information about the Law a motion would be introduced in the electoral system, and intends to table Commission’s electoral reform initia- legislature to initiate the process of its recommendations in Parliament. tive and the discussion paper are establishing a citizens’ assembly on The Law Commission is an independ- available at www.lcc.gc.ca. electoral reform. As a preparatory ent federal law reform agency that step, on September 20, 2002, the advises Parliament on how to improve Prince Edward Island government appointed Gordon and modernize Canada’s laws. The government of Prince Edward Gibson, a former leader of the B.C. Island has initiated an independent Liberal Party, to develop recommen- To stimulate public discussion and examination of Prince Edward Island’s dations on how the assembly should debate, the Commission released a electoral system. Its November 14, function and be structured. The discussion paper, Renewing Democracy: 2002, Speech from the Throne citizens’ assembly will assess various Debating Electoral Reform in Canada. pledged to appoint a commission on models for electing the MLAs, Nathalie Des Rosiers, President of electoral reform. On January 21, including preferential ballots, the Commission, stated that there is 2003, Premier Pat Binns announced proportional representation and the a growing perception in Canada that that the Honourable Norman H. province’s current electoral system. our democratic institutions may no Carruthers, retired Chief Justice of longer reflect the way in which the Supreme Court of Prince Edward Mr. Gibson has submitted a paper Canadians engage and participate in Island, had accepted an appointment titled Designing the Citizen’s Assembly, political life. “Our current voting to head the Commission. “I have which states: “In British Columbia system seems unable to reflect the asked the Commissioner to engage we employ the traditional ‘first past diversity of Canadian society and the Islanders on the important issue of the post’ (FPTP) system, which from variety of perspectives that charac- electoral reform so that the Election time to time has yielded quite unusual terize our country,” added Des Act, associated legislation and the results. We have seen situations Rosiers when the discussion paper manner in which our Legislative where the party with the largest was released. “It is also problematic Assembly is selected continues to be percentage of votes did not form because a party can win a majority of relevant and effective,” stated the government, or where government the seats in Parliament or legislatures Premier. An interim report is holds a disproportionate number with only a minority of the vote.” expected to be submitted in fall of seats compared to the vote it 2003, and a final report is to be received.” He also notes that the Since the release of Renewing completed in 2004. need for any reforms is not yet clear Democracy in October 2002, the Law because “many feel that the current Commission has held public consul- Last April, Merrill H. Wigginton, the system has served us reasonably tations on the current voting system province’s Chief Electoral Officer, well since the founding of British and its alternatives in Toronto, submitted a report on proportional Columbia and there is no need for Ottawa, Montréal, Vancouver, representation to the Speaker of the change.” Mr. Gibson’s paper is Charlottetown and London, Ontario. Legislative Assembly (see the October available at www.ag.gov.bc.ca/ Other consultations are being planned 2002 issue of Electoral Insight). He legislation/citizensassembly. for other parts of the country. The recommended that “any binding Commission’s electoral reform proj- decision for one system over another If the citizens’ assembly recommends ect is part of its strategic work on system should be left to a provincial a change to the electoral system, that “governance relationships,” which referendum, preceded by an impartial option will be presented in a referen- reflects the view that there is more to campaign of public education about dum question at the next provincial addressing concerns about democratic the issues involved in the choice.” election scheduled for May 17, 2005.

March 2003 43 Quebec The participants discussed 10 issues • 65 percent were in favour of incen- On June 20, 2002, the Premier of relating to the themes in the discus- tives to promote ethnocultural Quebec, Mr. Bernard Landry, and sion paper. community members’ access to the Minister responsible for the political institutions Reform of Democratic Institutions, Some of the notable results of the • 74 percent were against having a Mr. Jean-Pierre Charbonneau, pub- Estates General were: second legislative chamber with lished a discussion paper titled • 66 percent were in favour of the an equal number of representatives Citizen Empowerment. The paper current first-past-the-post system from each region was designed to provide a basis for incorporating elements of propor- reflection by addressing 10 themes tionality to reduce any distortions The Steering Committee submitted related to democratic institutions, • 53 percent supported changes its report to the government in early ranging from modifying the current to the current political system March 2003. It can be viewed at electoral system to the possible inspired by the rules of the tradi- www.pouvoircitoyen.com/en/estates/ adoption of elements of a presiden- tional parliamentary system, while welcome.html. tial system. 47 percent favour changes inspired by the rules of the traditional Before the April 14 provincial election On September 5, 2002, Mr. Claude presidential system was called, another initiative was being Béland was appointed to chair • 82 percent wanted elections to be conducted by the National Assembly’s the Steering Committee of the held on set dates Committee on Institutions. Its objec- Estates General on the Reform • 58 percent were against lowering tives were to assess the current voting of Democratic Institutions. The the voting age to 16 method and propose improvements Committee held consultations from • 80 percent were in favour of a to it. The Committee published a October 15 to November 27, 2002. popular initiative process that discussion paper in October 2002 Almost 225 briefs were presented. would allow referendums on titled The Reform of the Voting System certain major issues in Quebec, which explores the various The Estates General was held on • 74 percent were in favour of existing electoral systems and pro- February 22 and 23, 2003, with incentives to assist the access of poses avenues for reform of the almost 1 000 people participating. women to political institutions voting method in the province.

44 Electoral Insight