Elections and the Policy Process

GOVERNANCE Elections and the policy process

David Brock

lections are not typically understood as an area year. How Elections NWT prepared for and exe- for policy analysis. Students of public policy cuted the territorial general election is surveyed here. Emay be more likely to gravitate towards areas such Some may wonder if peculiar aspects of the NWT as environmental policy, energy policy, or health pol- electoral system might constrain or distort broader icy. Working in the electoral field is more classically analysis. I think not. As much as the system exhibits conceived as public administration. features not seen in most other jurisdictions (most no- However, the policy component of election man- tably, the absence of registered political parties), fun- agement also deserves attention. Conceiving election damental principles remain the same. Most management as a series of disconnected administra- importantly, the structural relationship between Elec- tive decisions underestimates the total cumulative im- tions NWT and legislators is characterized by impar- pact that these decisions have on a democracy. tiality and independence. Understanding election management as a series of This essay examines the policy aspect of elec- interconnected policy decisions rightfully captures tions in three sections: preparing for a general elec- how these decisions help to shape our democracy and tion, executing an election, and making citizen perceptions of it. recommendations to amend election law. It is important to emphasize that legislatures and Preparations for the 17th general election began elected members are the policy makers. Although the after my appointment on October 14th, 2010. Pri- Chief Electoral Officer (CEO) holds discretionary mary tasks included budgeting, hiring, procurement, powers and plays an important advisory role as an and strategic planning. Once these structural com- officer of the legislative assembly, election law is ponents were in place, we then implemented our made by elected representatives. Election law is the election preparedness plan. fundamental policy basis governing the conduct of As part of this effort, Elections NWT made fun- electoral events. At the same time, election manage- damental changes to voter registration by discontin- ment bodies (EMBs) such as Elections NWT have a uing the practice of comprehensive enumeration and critical role at various stages of the policy process, building the list of electors through data sharing and particularly at the stages of implementation and agreements. We updated and consolidated over 75 agenda-setting. The question explored in this essay administrative forms, such as the oath of elector, and is: What is the role of a Canadian EMB in the policy made many of these forms available electronically. process? Training materials were revised for accuracy and Without drifting too far into the epistemological simplicity, and training seminars were held for elec- realm, it may be helpful to remind ourselves of what tion officers. In advance of the election, we modern- is ‘public policy’. To be sure, the decisions of an ized and expanded our intranet site for election EMB are not those of government. Election man- management. Also, a marketing strategy was devel- agement in Canada has, for the most part, been suc- oped and implemented, with increased attention to cessfully separated from government in every matter our web presence and social media. These were some from budget allocation to the appointment of return- of the steps taken to bring Elections NWT to a state ing officers. At the same time, EMBs still exercise the of election readiness. powers of state. It may therefore be helpful to adopt In everything we did, policy development was re- a definition of public policy similar to that of quired to ensure that our practices were rational and Theodore Lowi, as an officially expressed intention consistent with the law. The Elections and Plebiscites Act backed by threat of sanction. was amended the year before the general election, The NWT was one of seven sub-national juris- causing more than 50 amendments to come into dictions in Canada that held a general election last force on July 1st, 2010.

38 Northern Public Affairs, Spring 2012 Major changes to the Act included: Elections in the NWT are held every four years • the introduction of voter identification in accordance with a fixed schedule. The 2011 terri- requirements; torial election ran from the issue of the writs on Sep- • a new early voting opportunity called tember 5th through polling day on October 3rd, the multi-district poll; when the unofficial results were announced, until • access by the CEO to certain govern- October 17th when the return of the writs certified ment data for the purpose of compil- who was elected. ing the Register of Territorial Electors; A total of 47 candidates ran for 19 seats in the • enabling the administration of the spe- Legislative Assembly. Three candidates were ac- cial (mail-in) ballot through the Office claimed as elected—which reflects the average num- of the CEO; and, ber of acclamations in NWT general elections. In • compliance agreements as an addi- electoral districts that held polls, the number of can- tional enforcement mechanism. didates ranged from two to five. Nine candidates (19 Beyond what is prescribed in legislation, the per cent) were women; as a percentage of all candi- CEO develops policy to determine how new and ex- dates, this figure is slightly below the average for fe- isting procedures will be implemented. For example, male participation in recent territorial elections. with respect to compliance agreements, an alterna- Polls opened for early voting on September 5th tive to prosecution to achieve legal compliance, I de- with the special (mail-in) ballot; later in the month, termined how these agreements would be multi-district polls were held for the first time at col- constructed, negotiated, communicated, and upheld. lege campuses and in prisons, polls for electors with Policy is therefore required to articulate how and why disabilities were delivered in residences, and voting this is done. in the Office of the Returning Officer was open for In fact, the enforcement of election law is a par- a ten day period. In all, 20 per cent of electors who ticularly salient example of the role of an EMB in cast a ballot did so before polling day. the policy process. In 2009, the Standing Committee After all ballots were counted on October 3rd, on Rules and Procedures, when examining electoral the unofficial results were, for the first time, commu- practices, recommended that: “...clear and consistent nicated directly from the CEO’s office to the public information be available to all candidates and the through our website. This was a very popular inno- public concerning the initiation of a complaint, what vation: on election night our website experienced happens to a complaint, the consequences of violat- over 32,000 page hits in a single hour. The unofficial ing the Elections and Plebiscites Act and decisions and results for the riding of Inuvik Boot Lake were so direction from the Chief Electoral Officer.” close that they mandated a judicial recount; the re- In April 2011, we published the Enforcement count was held on October 13th and affirmed the 5 Policy to convey what happens to a complaint once vote margin. Despite this close race and widespread it is received by the CEO, the basis for decision mak- interest in the results, only 48 per cent of eligible elec- ing, the stages of enforcement, and how decisions are tors cast a ballot. communicated. No such policy previously existed, Policy questions that arise during an election are leaving open to question what procedures were fol- often time sensitive and decisions rendered can affect lowed when complaints were received. campaign strategies and approaches. One mecha- The development of sound policy requires open nism I have to address policy questions during an communication. In 2011, I visited all 19 electoral dis- election is the power to issue instructions to election tricts in advance of the election and discussed elec- officers and candidates. This is an authority I exer- tions policy with returning officers, government cised eleven times during the 2011 general election. officials, and the press. Appearances at several events Instructions were issued to clarify, among other mat- also allowed me to discuss elections policy with im- ters, the delineation of polling division boundaries, portant groups; these events included, the Campaign how to account for certain election expenses, and School for Women organized by the NWT Status of how to identify who is responsible for election mes- Women Council, meetings of the Gwich’in Tribal sages. Council and Beaufort-Delta Regional Council, and Using CEO Instructions, Elections NWT is able the annual general meeting of the NWT Association to quickly communicate its policy positions. For ex- of Communities. In preparing for an election, it is ample, a CEO Instruction issued by me on Septem- important to limit the number of outstanding policy ber 6th concerned the use of social media by questions that might arise for candidates, official candidates and their campaign teams. With new agents, and voters during the campaign. media such as Facebook and Twitter now being used

Northern Public Affairs, Spring 2012 39 in NWT political contests, there was the potential for am recommending adopting a system whereby voters uncertainty as to how these media would be regu- lists are made more public and on-line tools are used lated. In my CEO Instruction, I conveyed how to ac- to communicate registration information to electors. count for any costs incurred, what was a suitable I am also recommending that returning officers be identification notation depending on the medium in granted the power to strike names from the prelimi- use, and how the prohibition on broadcasting 48 nary list of electors during the revision period as a hours before polling day would apply. practical Northern solution that is in keeping with Even with a sound policy basis, legislative gaps, the community-based nature of our electoral system. unforeseen events, or novel circumstances during an Our service delivery model may not be facilitat- election are sure to demand policy direction from the ing all electors with equal opportunities for partici- CEO. After an election, it is the responsibility of the pation. This is of particular concern in our smallest CEO to identify to legislators these new areas for pol- communities where there is no resident returning of- icy analysis. ficer. Without a resident returning officer, an elector In the entire election cycle, the requirement for in, for example, Ulukhaktok, may have difficulty ac- the CEO to report on the general election and to rec- quiring and submitting candidate nomination papers ommend legislative change is perhaps the clearest or accessing certain special voting opportunities such role for an EMB in the policy process. My complete as the mobile poll. Also, the current service delivery model does not suffi- The prohibition on broadcasting is out-dated. The original in- ciently incentivize all election officers to un- tention of the prohibition was to provide electors with a quiet pe- dertake or complete riod of reflection before polling day. This is no longer reflective certain responsibilities. I am recommending of reality. Other forms of advertising are permissible up to and that the Tariff of Fees Regulations be restruc- on polling day, 20 per cent of electors now cast their ballot before tured to sufficiently or- polling day, and the concept of broadcast has become quite ex- ganize, incentivize, and reward election pansive in the Internet age. officers. I am recommending discontinu- set of recommendations as well as more detail about ing the advance poll for communities without a each is found in the Report of the Chief Electoral Officer resident returning officer and introducing a new spe- on the Administration of the 2011 General Election. In this cial voting opportunity. I am also recommending that essay I offer a summary of some of the most policy- the application period for the special (absentee) ballot oriented of my recommendations. be opened earlier. Recommendations discussed below include: tools The prohibition on broadcasting is out-dated. to improve the accuracy of the voter list, ways to im- The original intention of the prohibition was to pro- prove our service delivery model, a repeal of the provide electors with a quiet period of reflection before hibition on broadcasting, and an examination of our polling day. This is no longer reflective of reality. campaign finance laws. Again, it is important to em- Other forms of advertising are permissible up to and phasize that these are recommended areas for con- on polling day, 20 per cent of electors now cast their sideration—it is elected representatives who are the ballot before polling day, and the concept of broad- policy makers. cast has become quite expansive in the Internet age. The quality of the voters list was the foremost I am recommending that the prohibition on broad- administrative issue brought to my attention follow- casting be repealed. ing the election. Concerns were raised about dupli- Territorial campaign finance provisions are too cations, decedents, and the currency of listed complex for an electoral system that does not recog- addresses. During the 2011 election, one in four elec- nize political parties and that has an election expense tors were not accurately listed within their polling di- limit of $30,000. An official agent with a reasonable vision. Problems with the accuracy of the Register of level of literacy and numeracy should be able to read Territorial Electors resulted from a voter registration the campaign finance provisions of the Act and com- system that had fallen into abeyance for three years ply. Instead, candidates and official agents too often and the painful but necessary transition from tradi- struggle comply with the law because it can be con- tional enumeration to modern data management. I fusing. I am recommending that legislators propose

40 Northern Public Affairs, Spring 2012 a set of principles to be reflected in the campaign fi- and under the circumstances. However, by under- nance provisions of the Act and that the CEO return standing the policy role of an EMB in theory we to the Legislative Assembly with detailed recommen- might be better placed to answer practical questions dations for change. at critical junctures, such as what is the role of an These are a few of the recommendations made EMB in addressing concerns related to voter in my report. Those who wish to read more about turnout? Or what is the role of an EMB in regulating the election and my complete set of recommenda- the activities of political parties outside of electoral tions are encouraged to download from www.elec- contests? Ultimately, policy decisions on these issues tionsnwt.ca or request from my office the Report of the are to be made by our elected legislators. Chief Electoral Officer on the Administration of the 2011 Answers to questions of this type will help to General Election. shape our democracy and how we understand our It is my hope that this essay takes us some dis- place as citizens in a democratic polity. ◉ tance in better understanding the role of an EMB in the policy process. This role is neither uniform nor David Brock is Chief Electoral Officer of the Northwest Ter- static. It will differ between jurisdictions, over time, ritories. s r i a f f A

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o t o h P McAvoy Road, Yellowknife, Northwest Territories, 2009.