NL Election 2021: Political Science Fiction

Newfoundland and Labrador may have just fumbled its way into an ultra vires election; game over on a technical foul.

For the duration of the 2021 provincial election, we are making our donors-only ‘letters from the editor of the Independent’ public. This article was initially sent to subscribers on 14 February 2021 (#41). For more like this delivered directly to your inbox every week, donate here.

A quick note: this is not the newsletter I was expecting to write today. The original idea was writing up the results of the 2021 election, hosting an election night livestream where we’d break down and wrap up the last four weeks of coverage, and then collapsing for a few days before attending to all the backend stuff that’s taken a backseat to the campaign. But you know what they say: “man plans and God laughs.” It is what it is; everything, for everyone, has been blown to smithereens.

Anyways: we will keep covering the election as long as it continues, despite these extraordinary circumstances. Happily, we are nearly halfway to the fundraising goal we launched over the course of the campaign. Alicia Morry is leaving the province just as all this was supposed to wrap up, but she will be able to continue covering the election remotely for however long it continues. (And with everything in Alert Level 5, there isn’t a whole lot we could do in-person anyway.)

If the election doesn’t stop then neither do we. Thanks for sticking with us.

First: I want to apologize. By writing in the last newsletter that the final week of Newfoundland and Labrador’s election campaign was “likely to be pretty quiet,” I was hilariously wrong and clearly invoked a terrible curse. Put that one up there alongside whoever said “not even God could sink this ship” about the Titanic. We’d all do well to smash our crystal balls.

Second: before wading too far into the mess that this provincial election has become, I want to assert that although we are in the throes of a natural disaster, Newfoundlanders and Labradorians will weather this storm. We successfully crushed the curve of Covid infections in the first wave and we will do so again. Between the guidance of Dr. Janice Fitzgerald, our strong sense of collective solidarity, and the dedicated public health professionals and frontline workers across the province, we will carry the day. There is a light at the end of the tunnel and we will get there together.

With that out of the way: after a week of chaos, the 2021 Newfoundland and Labrador election has likely been irreparably compromised. It’s really not clear where things go from here. We have drifted deeply into uncharted waters.

In a final twist of irony, the election now seems to be “about” the election itself.

This week has been a catastrophe for the entire province generally and Premier Andrew Furey in particular. The Liberals’ trump card in this otherwise empty election has been their claim to successfully mitigating Covid-19—which this week folded entirely following community spread of the B117 (or “UK”) variant of the virus. 

While Furey had previously recused himself from appearing in Covid briefings following the election call last month, this week he attended every briefing in his capacity as “caretaker premier.” Presumably his presence was meant to both underscore the severity of the situation and reassure an anxious public. (Less charitably, one could argue it also allows him to play the hero doctor on TV in the leadup to election day.) But in effect all he has done is take up valuable space and politicize the proceedings, putting the Chief Medical Officer of Health in an uncomfortable situation.

Technical questions around the outbreak and new public health measures have been ably answered by Dr. Fitzgerald. Administration concerns have been fielded handily by John Haggie in his capacity as “caretaker” minister of health. Furey’s role mostly seems to be ensuring the briefings get weighed down with questions about election logistics and political considerations that he is either unwilling or unable to answer. His presence adds little and detracts a lot.

It bears repeating that despite his insistence to the contrary, Andrew Furey was not actually “bound by law” to call this election when he did. The 2015 provincial election was delayed past Paul Davis’ one-year mark as unelected premier in order to avoid a scheduling conflict with that year’s federal election; a similar option was always available. (The House of Assembly actually passed a private member’s resolution from the opposition to push the election until October 2021, but it was non-binding so the government ignored it.) It also bears repeating that, as the head of government, it is literally Furey’s job to modify existing laws and craft new ones.

He actually had a number of alternatives to this snap winter election. But he made the choice he did for his own reasons—and that is also totally fine, although ideally he would own it.

The real problem arises from the fact that neither the governing party nor Elections NL bothered to prepare a contingency plan in the event of an active Covid outbreak during the writ period—i.e. the primary emergency consideration when planning for a pandemic election. Everyone just assumed things would be fine. Hindsight may be 20/20, but an ounce of prevention is worth a pound of cure. We’ve heard a lot over the course of this campaign about “rising to the challenge,” but as it turns out, Premier Icarus set his aim too high and flew directly into the sun.

Anyways, the timing of this election is ultimately on the premier. But responsibility for running it belongs to Chief Electoral Officer Bruce Chaulk—the other key actor in this week’s drama.

With election day jeopardized by the Covid outbreak on the northeast Avalon, it was not always clear this week who had the power to postpone the election: Chaulk in his capacity as CEO, or Dr. Fitzgerald in her capacity as CMOH during a public health emergency. (This is one area where pre-election attention to the Elections Act in the House would have been helpful.)

After a few days of officials passing this buck back and forth across several Covid briefings and a bunch of media interviews, Chaulk on Thursday morning wrote a letter pleading for the three parties to meet with Lieutenant Governor Judy Foote about finding a “constitutionally sound mechanism” to address a problem he insisted he had no authority to solve. Hours later, he unilaterally decided to postpone the election in 18 districts on the Avalon peninsula. Elections NL announced late Friday afternoon that they would proceed with the proposed (two-tier) election. Then, on Friday night, following staff walkouts at polling stations across the province, they suddenly canceled in-person voting everywhere and moved entirely toward mail-in ballots.

Significantly, Chaulk made this announcement to national media during the press conference where Dr. Fitzgerald and a dishevelled premier were announcing a province-wide lockdown in the wake of identifying B117. He did this without informing any party leaders ahead of time that he was doing it—and after several days of ducking local reporters. Whew. Thank God we’re paying this guy nearly $150,000 a year to handle running our elections. This is a level of incompetence indistinguishable from malice.

If you are confused about what’s happening now in the 2021 election, you are not alone. We know that voters are able to request mail-in ballots until 8 p.m. on Friday, February 19 and return them to Elections NL by no later than March 5. Good luck getting through on the phone!

Otherwise, Elections NL is in the process of authoring a political science fiction thriller completely by the seat of its pants. This is exactly the sort of procedural uncertainty you want to avoid at the climax of an election campaign.

It’s a serious problem. The outcome of the election is now in jeopardy. Alicia Morry interviewed constitutional law and emergency management specialist Lyle Skinner about this on Thursday. The gist of the matter is that the Elections Act does not actually contain any provisions allowing polling day to be postponed beyond two standard business days. As Skinner put it: “one could make the argument that those results would be void because they would have been cast after ordinary polling day… [although] whether that argument holds water or not is something for the courts to decide.”

James Bowden at Parliamentum, meanwhile, is more explicit (and scathing) about the problems both Andrew Furey and Bruce Chaulk have stumbled into this week. His post (“Electoral Disaster Strikes the Rock: Newfoundland and Labrador’s Crazy COVID Election”) is worth quoting at length:

“The Elections Act does not provide the authority to do what the Government of Newfoundland and Labrador has done. (…) [Even] if the Chief Electoral Officer could somehow construe section 62 into saying what he wants it to mean, he must nevertheless abide by section 58(1), which sets the minimum and maximum duration of the writ at between 28 and 35 days. (…) Since the writ began on 15 January 2021, this puts the possible date of the general election between 12 to 19 February. And yet, on 11 February 2021, the Chief Electoral Officer issued an extraordinary order—with no basis in statute whatsoever—cancelling the polling day and in-person voting for fully 18 out of 40 ridings… Absolutely extraordinary! I must emphasise this point strongly: the Chief Electoral Officer has no statutory or regulatory authority whatsoever to issue this directive. Nothing in the Elections Act authorises him to do so, and he cannot act on some nebulous prerogative authority. This is totally unconstitutional. And in practical terms, this decision destroys the integrity of the election by definition, with Labradoreans and Newfoundlanders (…) voting by mail (…) after the maximum duration of the writ expires under the Elections Act. This is madness. (…) Premier Furey might try to invoke a novel interpretation of the Doctrine of Necessity and (…) advise the Lieutenant Governor to revoke the writs issued on 15 January and, in effect, cancel this election, or somehow try to bypass the minimum and maximum duration of the writ set out in section 58.1 of the Elections Act—as if this election never happened. (…) [Wiping] out the writ as if it never happened and starting it over still sounds jarring. And that would surely violate the purpose and any reasonable interpretation of section 58(1) of the Elections Act.”

I can’t in good conscience endorse Bowden’s conclusion that “maybe a Commission Government would suit this province better once more.” (Yikes!) But even through all the confusion, it should be clear that the election itself has been compromised—maybe irrevocably. Newfoundland and Labrador may have just fumbled its way into an ultra vires election; game over on a technical foul.

Again, we would all do well to smash our crystal balls at this point. It is not clear where things go now. By contravening the letter of the Elections Act, the eventual results remain wide open for a court challenge. They may or may not be upheld; as a general rule the courts are happy to let people vote if it is at all reasonable. But beyond the obvious legal conundrum, there are also real concerns that a rapid shift to mail-in ballots are, in effect, a form of voter suppression. Even if the election results are ultimately accepted there will be a big asterisk on Newfoundland and Labrador’s 50th General Assembly forever. This is less than ideal if you’re trying to get a majority government with the legitimacy necessary to introduce sweeping socio-economic changes.

It did not have to be this way. CEO Bruce Chaulk could have prepared a pandemic election contingency plan at any point over the last eleven months instead of waiting until 48 hours before the polls opened. Premier Andrew Furey and the governing Liberals could have spent one of the 19 days the House sat in Fall 2020 to amend the Elections Act to include pandemic provisions and/or set a new date after vaccinations were further advanced. Instead, they did neither.

There is a possibility for a political compromise. The NDP and Tories have written to Bruce Chaulk, asking for an all-party meeting to broker a working solution. The Liberals have indicated they would rather Chaulk only engage with parties individually (preferably in writing) to avoid the appearance of “politicizing the process.” We appear to be at an impasse, which is not what you want on the cusp of a constitutional crisis. The least painful way forward would be all parties coming to an agreement with the elections authority on how this situation proceeds under emergency conditions. But we can do this the hard way too. Why not! It’s very on brand for the province.

The Liberals gambled on a pandemic election and lost massively when the virus appeared. No one prepared a backup plan in case things went awry. Now we all have to pay for it with the indefinite extension of this farcical election at a moment of extreme collective trauma. This is the worst Newfie joke I have ever heard in my life.

I have no idea what my vote will count for anymore. But I know which party will not get it. And I don’t think I’m alone.

Photo by Sigmund on Unsplash.

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