05/18/2020 10:08 EDT | Updated 05/20/2020 16:10 EDT

Federal Election During COVID-19 Crisis May Require New Laws: Elections Canada

Seemingly small changes, such as providing one-time use pencils, would require new legislation.

Andrew Vaughan/CP
File photo of voters lining up to cast their ballot in Canada's federal election at the Fairbanks Interpretation Centre in Dartmouth, N.S., on October 21, 2019.

OTTAWA — Changes may need to be made to Canada’s federal election law if COVID-19 remains a pandemic whenever voters head to the polls again.

To prepare for that scenario, Elections Canada has appointed a 25-member working group to delve into necessary details to administer a national vote. But there’s a limit to the changes the non-partisan, independent agency can make.

“If there were to be a decision that the risk is too great, the only way people will be able to vote is by mail-in ballot, the Canada Elections Act would have to change,” spokesperson Natasha Gauthier told HuffPost Canada. 

“Parliament would have to make that change. That’s not up to us to make.”

Watch: COVID-19 puts voting-by-mail to the test. Story continues below video.


Elections Canada can make certain moves, such as deciding to put training courses online rather than holding in-person sessions or reducing staff at polling stations, without getting politicians involved. 

Because of the time commitments for being an election worker, Elections Canada says seniors and retired people tend to come forward to fill those positions. Staffing strategies will have to be assessed because the COVID-19 pandemic has shown that segment of the population as the most vulnerable to the contagious respiratory disease.

It will likely take years before a vaccine is found and made widely available for COVID-19, the novel coronavirus that has made physical-distancing measures mainstream in 2020.

Though the next fixed general election date is Oct. 16, 2023, Elections Canada is preparing for the possibility the Liberal minority government could fall earlier.

But even seemingly mundane ideas, such as possibly scrapping the use of pencils at polling stations, aren’t straightforward, especially when scaled to a national level.

We can’t just decide, OK we’re not going to have the pencils because it’s too much of a virus-spreading risk. We cannot decide that because it’s in the law that we have to have those pencils,” Gauthier said.

Under federal law, Elections Canada is required to provide “a suitable black lead pencil for the use of electors in marking their ballots.”   

Brett Gundlock via Getty Images
People vote a polling station at Alderwood Pool for Canada's 43rd general election October 21, 2019 in Etobicoke, Ont.

But pencils are just a small piece to an election. If a federal vote coincides with public health advice for Canadians to stay at home, Elections Canada says the federal law will require “fundamental changes” to ensure accessibility without disenfranchising vulnerable groups.

Turnout for the last federal election was 18.3 million people, or 67 per cent of registered voters, including more than 34,000 Canadians abroad who mailed in ballots.

The law does not allow for an election to happen exclusively by mailed-in ballots. While election security was the top concern in 2019, Elections Canada says the biggest issue currently facing the working group is assessing the capacity of its vote-by-mail system.

“It wasn’t designed to be the only way people can vote,” Gauthier explained. “Even if we had that capacity, we couldn’t do that because the Canada Elections Act says that we have to provide Canadians with a variety of ways to vote.” 

By law, Canadians have three options to vote: in person on election day; in person at advance polling stations; or by special ballot. 

In a scenario where health concerns are extremely high and Elections Canada concludes it’s impractical to hold a vote, the chief electoral officer does have the option of recommending to the prime minister that the election writ be withdrawn. This would be a historic first in Canada. 

Minister open to possibility of changing elections law

Changes to the federal elections act were previously handled by the democratic institutions minister — a role that has since been scrapped. Veteran Liberal MP Dominic LeBlanc, president of the Queen’s Privy Council, has been handed the responsibility of considering any changes to the Canada Elections Act.

Corinne Havard, LeBlanc’s spokesperson, told HuffPost the government is keeping an open mind to future changes that may need to be made before Canadians head to the polls again.

“In light of COVID-19, electoral bodies might need to put in place new practices to ensure the safety and security of all Canadians,” she said. “Elections Canada — an independent agency — is currently examining how the electoral process might have to be adapted. We look forward to examining the recommendations.”

Saskatchewan chief electoral officer granted more powers through regulation

If the law isn’t changed, or if the vote-by-mail system isn’t expanded before a federal election is called, Canadians could witness scenes reminiscent of what happened in Wisconsin’s U.S. presidential primary in April.

Voters in the midwest state defied stay-at-home orders to line up to vote. The reduced number of polling stations, combined with physical-distancing advice to keep six-feet apart, made lineups even longer. One voter told Bloomberg News that it took him 10 minutes to walk the length of one line up, end to end. 

Andy Manis via Getty Images
\Poll worker Rhonda Griffin stands ready to hand out sterilized pens at a polling place on April 7, 2020 in Sun Prairie, Wisc.

Electors were given their own pens to use and keep. Poll workers were given personal protective equipment. Members of the National Guard were brought in to fill staffing gaps after some poll workers decided not to work out of health and safety concerns.

The state primaries are a possible precursor to the U.S. presidential election scheduled for November. President Donald Trump has recently railed against mailed-in ballots as being susceptible to election fraud, despite casting his own absentee ballot in March

Elections Canada has been monitoring how U.S. states, and countries including South Korea, have been conducting elections amid a pandemic.  

Saskatchewan is also expected to hold a provincial election this fall. In the thick of the pandemic, that province’s chief electoral officer recommended an expansion of emergency powers to give him the authority to make changes to administer a safe election. He was granted more authority through government regulation, not through new legislation.

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