A Pandemic Federal Election

Abstract

While Canada’s next fixed date federal election is scheduled for October 2023, one of the consequences of the current minority Parliament elected in 2019 is that a new election could be called at any moment. It is therefore possible that the next federal election will occur while COVID-19 is still a pressing risk to public health. In April 2020, Elections Canada issued a remarkable statement in anticipation of a federal election in the midst of the COVID-19 pandemic. Elections Canada communicated that it might not be able to administer elections in all ridings due to the ongoing public health emergency. In such circumstances, Elections Canada would certify to the Governor General in Council that the writ of election, the legal mechanism for instituting a vote in each of the 338 federal ridings, should be withdrawn. This statement highlighted the difficult decisions facing democracies with upcoming elections in the face of a pandemic caused by a highly transmissible virus. This article assesses the main legal issues raised by the prospect of conducting a federal election in Canada during the pandemic. Building on the experiences in other countries and in the Canadian jurisdictions that have held pandemic elections, I argue for new measures to ensure access to the fundamental right to vote in the face of the pandemic. These reforms include measures at polling stations to ensure public health, the expansion of advance voting, and for rules for mail-in voting that maximize access. Section III summarizes and analyzes the current options for casting a ballot in federal elections.The section argues that reforms are necessary in light of the pandemic. Section IV addresses in-person voting during a pandemic. It discusses in particular changes within polling stations to adapt to the pandemic and the expansion of early voting opportunities. Section V analyzes the pressing topic of mail-in voting. It summarizes what we know about public attitudes to mail-in voting during the pandemic, canvasses models for voting by mail in other jurisdictions, and assesses the deficiencies in the current framework in the Canada Elections Act. I argue that the existing system for voting by mail appears likely to be inadequate if used on a much wider scale than in previous elections, when few votes were cast in that fashion. Voter education should be a priority to maximize the chances that Canadians who intend to cast their ballots by mail will follow the proper procedures and, therefore, have their votes counted. Legislative reforms are also needed, however, to ensure that all ballots received within a reasonable timeframe are counted. The bill before the House that would amend the Elections Act in response to the pandemic does not, in my view, go far enough in updating the legal framework for voting by mail.