Andrew Furey’s Liberals Have a Legitimacy Problem

It’s hard to imagine what sort of election investigation will be undertaken by a government that won’t question the legitimacy of its win.

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Usually in Canadian provinces, a newly-elected legislature begins with the parties disagreeing about policy, not about the legitimacy of the election. But an election unlike any other has brought this unique problem to Newfoundland and Labrador, and it may result in uncertainty in the future.

When the election was called at the request of Liberal Premier Andrew Furey in January, his goal was clear: capitalize on the province’s relative success in keeping COVID-19 at bay, and get voters to the polls before seeing the Greene Report. The report—commissioned by the premier to advise on fixing the province’s significant fiscal problems—has been described by Furey as guiding his government’s future economic policies. It has been widely expected to include some “tough medicine.” With high polling numbers, an election seemed certain to deliver Furey a majority government with relative ease, especially if discussions about economic reforms could be avoided.

And if the COVID-19 outbreak that saw a peak of 100 new cases per day hadn’t hit in early February, it’s likely the Feb. 13 election would have given Furey a comfortable majority of seats and a comfortable majority of votes, with a normal voter turnout.

Instead, the outbreak laid bare the minimal efforts made by both the government and Elections Newfoundland & Labrador to anticipate COVID-19’s potential risks. The election result was postponed until March 27, delivering instead a relatively thin Liberal majority: 22 of the legislature’s 40 seats, based on 48 per cent of the vote, from a record low voter turnout—also 48 per cent.

The preliminary economic report that was due to arrive shortly after the election in February remains a mystery. Its lead author, Dame Moya Greene, considered that deadline to be flexible. Highly flexible, it turns out, as it has still not arrived.

But the inability to deliver an economic report has paled in comparison to the inability of Elections NL to deliver a trustworthy election. On Feb. 11, as cases began to spike, Chief Electoral Officer Bruce Chaulk wrote a letter to party leaders stating his limited ability to postpone the election and making the baffling suggestion that the premier re-visit the lieutenant governor to request she exercise a non-recognized power to allow a delay. Hours later he postponed the election in 18 districts. Notably, Elections New Brunswick’s CEO, working with almost identical legislation, has stated her inability to postpone an election. Further, the report provided by Chaulk following the election does not clarify the legality of this adaptation.

Then, on Feb. 12 with the original mail-in ballot deadline passed and advance voting completed, Chaulk announced on CTV News that the next day’s election was entirely postponed. Over six more weeks, twice-adjusted registration deadlines and multiple extensions to mailing deadlines, a mail-in-only election was carried out for the vast majority of voters. 

Unlike the recent United States election—with claims of illegitimacy, protests and significant portions of the electorate questioning voting processes—there are actually valid reasons to question the legitimacy of this election. These adjustments in date and format are among those that may be scrutinized, should parties or individuals choose to challenge election results legally. Court documents may also contain Chaulk’s statements about voters not trying hard enough to vote, his decision to hand deliver ballots to some former MHAs (who would be charged with determining his future employment were they re-elected), and his decision to illegally allow voting by phone after telling media earlier in the campaign this wasn’t permitted.

Aside from legal questions about Chaulk’s actions, many citizens have claimed they were unable to vote given the election adjustments. Some simply didn’t receive a ballot. Others received three, or had the wrong name on their ballot package. Political parties kept track of these problems through the campaign, and 3 districts (to date) are being challenged in court. While courts dislike overturning election results, precedence indicates if candidates can show the win-margin in any district is smaller than the combination of voters who (a) were incorrectly permitted to vote, and (b) were incorrectly not permitted to vote, then it is likely those districts will need to be run again.

Trust issues also arose, as the election dragged on and new questions were asked about preparedness. Furey claimed early on that he received advice and “probabilistic modelling” from medical experts, yet an access-to-information request for these documents was rejected because they were deemed cabinet documents (even though election advice is not a cabinet matter). Furey then claimed there were no documents, and after the top modelling doctor in the province confirmed he had given no such information, Furey admitted he had simply looked at data from British Columbia and Ontario and guessed about that data’s relevance to Newfoundland and Labrador. It’s unclear if we now have the truth, or simply a better story than the truth.

When results were finally announced, Furey declared both that the election was legitimate and that he had received a majority mandate. Presumably this includes a mandate for economic reforms that are yet to be presented to voters. Political scientists dislike the term “mandate” when applied to elections in Canada. We dislike it more when it applies to the unknown.

Furey has since said that his government will look into problems with the 10-week-long election, but has been unwilling to acknowledge any problems that would undermine his claim of a mandate. The government has proposed a committee to amend the Elections Act, but has given itself a majority of seats on that committee, indicating that it intends to pursue changes without agreement from other parties. It’s hard to imagine what sort of election investigation will be undertaken by a government that won’t question anything regarding the legitimacy of its election win, and considers itself justified in holding a majority position to amend election rules. Under no circumstances should changes to the Act be considered acceptable without multi-party support.

Polls have shown as many as a third of citizens think the election was illegitimate, and the province’s parties have shown a stark divide on this as well.

Furey likely expects to push ahead with economic reforms. In an environment where opposition parties are questioning his legitimacy to govern, he may well find it to be one of the hardest tasks a majority government has undertaken in modern history.

Photo by Sigmund on Unsplash.

Kelly Blidook is an associate professor of political science at Memorial University in St. John’s.

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