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After a week of uncertainty around the fate of Newfoundland and Labrador’s 2021 provincial election—occurring amid the province’s worst Covid-19 outbreak since the pandemic began last year—some solutions have started falling into place. But the unprecedented new measures present more questions than answers.
Chief Electoral Officer (CEO) Bruce Chaulk announced this afternoon that he would be delaying polling in 18 districts on the Avalon peninsula. Traditional voting will continue on Saturday, February 13, 2021 in all other districts. To protect the integrity of the vote, the results from these districts will not be released until voting has concluded everywhere.
PC leader Ches Crosbie has been vocal in arguing for a postponed election in all districts due to the possibility of spread beyond the St. John’s metro region as well as effectively creating two tiers of voters.
“Simply put, some voters will have more time than others—and more access to information—to make their electoral decision,” wrote Crosbie on Twitter. “That is wrong and calls into question the integrity of the electoral process.”
Mail-in ballot applications will re-open for anyone in the province, with a new deadline of Saturday, February 13 at 8 p.m.. Ballots need to be returned by Thursday, February 25.
Chaulk’s announcement comes in the wake of public calls to postpone the election given the dramatic rise of Covid-19 cases in the St. John’s metro region since Monday. There are now 210 confirmed active cases in the province and at least 1500 people in isolation.
Uncertainty has swirled around voting accommodations for those now forced to isolate. Prior to today’s announcement, the only option was a proposed drive-thru voting scenario.
Whose Call is it Anyway?
There has been ongoing confusion as to who has the legal authority to delay an election. Just Thursday morning, Chaulk had penned a letter to party leaders urging them to “discuss the current issue with a view to contacting the Lieutenant Governor to explore a constitutionally sound mechanism to postpone polling day.”
Many electoral workers were opting not to work in polls given growing fears and uncertainty around community spread of Covid-19. Chaulk wrote that due to the likely increase in positive results between now and Saturday, there would not be enough staff for polls to open.
On Tuesday, Chaulk told the Independent that it is within his purview to delay an election. But he would only consider doing so in certain districts if the covid Alert Level was raised, which is within the purview of the Chief Medical Officer of Health (CMOH) Dr. Janice Fitzgerald.
When asked during Wednesday’s briefing whether she has power to delay the election, Dr. Fitzgerald stated that she “is not a legislative scholar.”
At Thursday’s briefing, Dr. Fitzgerald said that she had a legal opinion on whether it was within her authority to postpone the election.
“I was advised that I do not have the authority to postpone an election and what else was said is out of my control,” she told reporters.
In his letter, Chaulk had stated that “there are constitutional limitations and other legal implications that limit my ability to unilaterally prolong an election period for an indefinite time.”
He argued that the CMOH has significant and clear powers that may be relied upon to protect public health.
“In my opinion, to conduct a fair election she must exercise those powers to delay the election,” wrote Chaulk.
Despite these concerns and statements, Chaulk eventually made a decision to postpone the election.
Lyle Skinner is a lawyer from New Brunswick licensed with the Ontario Law Society. He specializes in emergency management and constitutional law.
He says that without clarity on the legal source of Chaulk’s power to indefinitely delay the election, there is a risk that ballots cast after 8 p.m. on Saturday could be challenged in court.
According to Skinner, there is a provision in the NL Elections Act to delay the election by two days (in this case to Tuesday, February 16) at a particular poll. Section 10 of the Act does confer the CEO powers to make changes adapting to an emergency, but states that it can’t allow for in-person voting to occur outside of regular hours.
“But to delay it indefinitely, it’s very unclear where this power exists in the Elections Act,” said Skinner.
“One could make the argument that those results would be void because they would have been cast after ordinary polling day, with the exception of it being Tuesday,” he explained. “As for whether that argument holds water or not is something for the courts to decide.”
Skinner says that the other election postponement paths outlined in Chaulk’s letter—party leaders going to the Lieutenant Governor or the CMOH citing a public health concern—have very limited weight.
He says that, essentially, the Lieutenant Governor on their own accord does not legally have a residual of reserve power to intervene.
“Going to Government House and asking the Lieutenant Governor, it’s a non-starter,” said Skinner.
He also says that using the Public Health Protection and Promotion Act under the authority of the CMOH needs to be taken into context.
“It really strains the interpretation of the Act to state that [it] also includes the modification of a polling date, simply because those emergency powers are also still constrained by the constitution and the rule of law,” explained Skinner.
“Newfoundland and Labrador has a separate emergency act where Cabinet itself can declare a state of emergency province wide. And that power is more encompassing. By contrast, using the public health act (which is limited to public health measures) to then overwrite these other aspects of law in Newfoundland and Labrador—it’s a really hard argument to make. There have to be limits.”
Skinner says that New Brunswick could have faced a similar scenario during their pandemic election last fall. When that assembly dissolved, there were no provisions in their respective elections act to allow for deferring or withdrawing a polling date in the event of an outbreak.
“Thankfully in that case in New Brunswick, there were no active cases of covid or significant issues over the course of the election,” he said. “But it was something that the Chief Electoral Officer of New Brunswick herself stated: that she had no legal authority to alter the election date.”
He emphasizes that the CEO pointing to where exactly his authority lies in delaying the election will ease concerns around election results potentially being challenged at a later date.
“But in the absence of that, it’s really hard to predict what happens next.”
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