Is Hindsight 20/20? Breaking Down the 2021 NL Election Saga

We break down how the provincial election has been unfolding, how other Canadian jurisdictions approached pandemic elections, and where we go from here.

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Newfoundland and Labrador continues to grapple with administering the 2021 provincial election in the wake of the province’s worst Covid-19 outbreak. Since cancelling in-person voting on February 13, challenges have plagued Elections NL over the past two weeks as the agency has pivoted to mail-in Special Ballots.

Were these challenges predictable? And would any level of planning have been able to address them?

“The call of an unscheduled general election… during a global pandemic, combined with the shortest campaign period allowed by law, created the perfect storm for the administration of a province-wide election.”

These words aptly describe challenges surrounding Newfoundland and Labrador’s ongoing provincial election. But they were actually written about New Brunswick—one of three other provinces to hold pandemic elections.

Here, the Independent breaks down how the provincial election has been unfolding, explores how other Canadian jurisdictions approached pandemic elections, and hears from political scientists on whether things had to be this way—and where we go from here.

What is Going On?

Audrey Wood is retired and has regularly worked at election polls in the St. John’s metro area. 

While Wood was among those willing to go ahead with working on election day, she reports feeling a growing unease as cases of Covid-19 rose in the week prior to the election—despite being assured that voting would be conducted safely. 

“As it was getting nearer and we weren’t sure what was going to happen, I was getting a little bit apprehensive about it… So I was willing to proceed until maybe the last day [Thursday] when it started getting a lot more serious. And I was not too sure,” Wood told the Independent.

Wood was not alone in her wariness: in-person voting was initially postponed in 18 districts on the Avalon Peninsula, and then completely canceled in all 40 districts due in large part to mass resignations by polling staff.

The district of Fogo Island-Cape Freels was among the first off the Avalon peninsula to announce the closure of many polls. Derrick Bragg, Liberal candidate for Fogo Island-Cape Freels, wrote in a Facebook post on February 12 that he had been informed by the district office that a significant portion of polls in the district would be closed on election day. 

In-person voting was still slated to go ahead in 22 out of the province’s 40 districts, less than 24 hours prior to the original election date (February 13). 

“It was only when it became impractical on Friday night that we had to make the decision not to go forward,” Chief Electoral Officer (CEO) Bruce Chaulk told CBC’s Rosie Barton on February 14.

“We had anticipated that we would lose a number of people working for us at the polls. And as such, we increased the number of people who were on our list for calls in case we had people pulling out. And they were very long lists, but it became impractical to get people that just suddenly refused to work,” said Chaulk.

Elections NL elaborated in a statement to the Independent that the resignation of poll workers had a profound effect on their ability to execute the election as planned:

“No level of preparedness could have helped us with the resignations of poll workers en masse throughout the province. During an ideal election, we have an extremely limited pool of recruits from which to draw poll workers. Our workers are also, generally, older people who feel that they are at particular risk right now when working in publicly facing positions (such as poll work). When the province shifted quite abruptly from Alert Level 2 to Alert Level 5, we quickly realized we would be unable to operate in-person polls and had to evolve to a mail-in vote.”

Moving to an entirely mail-in vote also presented challenges as Special Ballot applications had to be conducted online or over the phone. Phone and internet outages in Labrador further limited the capacity of many voters to apply to receive a special ballot. Those with phone or internet access also faced challenges, as the Elections NL online special ballot application system and phone lines were often overwhelmed.

The past weeks have seen a flurry of announcements and shifting deadlines in response to issues that have emerged. Lawyers and political scientists have expressed concern that irregularities and the lack of clarity on Chaulk’s legal source of power for his actions may lead to court cases on election results. 

Early figures also indicate that a much lower voter turnout is expected for this election as compared to 2019. The Special Ballot deadline passed on February 19. Ballots must be postmarked by March 12 in order to be counted. Assuming all requested ballots are received, properly filled out, and returned in time, turnout for the 2021 election would cap out at 51% of eligible voters—the lowest in Newfoundland and Labrador since 1949.

Election Lessons: New Brunswick

New Brunswick was the first Canadian province to hold an election during the pandemic. Their minority Progressive Conservative government called an unscheduled election which took place on September 14, 2020. The PCs went on to form a majority. 

Chief Electoral Officer (CEO) of New Brunswick Kimberly Poffenroth put forward a special report containing recommendations for legislative change arising out of the provincial general election. Released on January 21, 2021, the report contains prescient commentary on the potential for challenges which are now being faced by Newfoundland and Labrador. 

“The Elections Act is intentionally prescriptive but, at the same time, this limits Elections New Brunswick’s ability to adapt or modify the electoral processes in order to respond to unanticipated challenges,” reads the report. “Although our conduct of this historic and precedent-setting election was generally considered a success for Elections New Brunswick, it is important that the lessons learned during the election not be forgotten and that they be acted upon.”

The report states that it was produced with urgency to highlight changes that Elections NB considers “critical and should be considered in a timely fashion.”

It highlights that as the first election management body in Canada to administer a general election during the pandemic, Elections NB did not have the benefit of drawing upon the experience of other jurisdictions to design a strategy for running this election. It goes on to say that they benefited from having Public Health and the Department of Justice and Public Safety review the operational plans that were put in place for providing electors with safe voting opportunities.

The report recommends that the “Elections Act be amended to provide the Chief Electoral Officer with the authority to adapt the provisions of the Act to the execution of its intent and to protect public safety in the event of a declared state of emergency, including a public health emergency.”

The report also recommends increasing the minimum number of days prescribed for the election period of an unscheduled provincial general election. It also makes a number of recommendations on improving the special ballot application process, including extending the deadline for mail-in ballots to be validly received and counted beyond the current Election Day deadline.

“While, at the end of the day, Elections New Brunswick successfully administered a safe election in September 2020 under clearly challenging circumstances, it is still important to make recommendations to mitigate the challenges that we identified during this election,” concludes the report. It stresses that identified recommendations can only be achieved through amendments to legislation. 

Elections NB declined an interview request with the Independent, stating that the CEO “does not feel it is our place, or appropriate, as our colleagues deal with their challenges to attempt to offer input from the sidelines. These are two different and unique circumstances in dealing with the pandemic.”

Election Lessons: British Columbia

BC was the second province to go to the polls during the pandemic. On September 21 their minority NDP government called an unscheduled election which was held on Saturday, October 24, ultimately giving the incumbent NDP a majority. 

Andrew Watson is the Director of Communications with Elections BC. He says that the agency started planning for a potential pandemic election in the early part of last year. 

“We recognized that it was likely that BC’s next election would be held under some level of public health restrictions. Obviously it wasn’t clear when the election would be held at that point or what those restrictions would be. But given our mandate to be ready to administer an election when called upon to do so, we began our planning at that point.” 

Watson says that Elections BC worked with the province’s Provincial Health Officer to identify what it would take to administer an election during a pandemic. An Election Advisory Committee meeting was held with the major parties in late August. 

The agency also conducted survey research in May and August 2020 among voters to get their thoughts on how they would like to vote if an election were to be held during the pandemic.

“One of the key takeaways from that research was that many more voters would prefer to vote by mail if an election were to be held during the pandemic. So that really informed our planning in terms of making sure we had the infrastructure in place to meet the demand for a large number of vote-by-mail ballots,” said Watson. 

Watson says that Elections BC benefited from the ability to vary from their legislation through order of the CEO.

“So our election legislation is usually very prescriptive, right? It sort of maps everything that happens step by step. But in BC, in emergencies or extraordinary circumstances, the CEO can issue an order to vary from that legislation,” said Watson. 

Watson says that a number of orders were made in advance of the election while other adaptive measures were able to be done administratively. 

In order to mitigate risks surrounding the pandemic, Elections BC extended advance polling days from six to seven days and emphasized vote-by-mail opportunities to voters. 

“It’s something we really focused on in our public awareness campaign right from the start of the election. Letting voters know that all eligible voters could request a vote by mail package and have that voting opportunity available to them,” said Watson. 

Watson says there was a staggering increase: 6517 voters voted by mail in 2017 compared to 596,287 in 2020. Special ballots were administered upon request, with voters needing to apply online or call their phone centre. 

“That’s another administrative challenge,” said Watson. “Being able to scale to that level of administrative demand was something we were able to achieve, but it was challenging for sure 

Elections BC had assisted telephone voting in place for those in isolation during the last week of the campaign who were unable to vote by mail. Watson confirms that Elections BC sent documentation on assisted telephone voting to Elections NL earlier this month upon their request. 

Post-election, Elections BC identified providing accessible voting opportunities to remote and Indigenous communities as one of the major challenges. 

Their strategy involved communicating in advance, facilitating coordinated vote-by-mail opportunities, or having mobile teams from within a given community trained as election officials with support of a local electoral district officer. 

“Obviously there’s a lot of variety in terms of the community’s needs and their preferences. So we tried to tailor voting options for what would work for them. But coordinating vote by mail opportunities was the major strategy,” said Watson. 

Elections BC does not yet offer translation services into any Indigenous languages, but Watson says it’s something they are looking at doing in the future. 

Watson says that despite the increase of mail-in ballots, they were able to complete counts within the time frame which is the norm in BC. Mail-in ballots are not counted until about two weeks after election day in order to go through a vetting process to ensure voters have not already voted. The mail-in count process generally takes place over three days

“So yes, we had thought that perhaps with the volume of mail-in ballots that would take longer, but we were able to achieve it within three days by increasing the number of people who were assisting with the count,” said Watson. 

When asked if there is any advice that he would give Elections NL at this stage, Watson stresses that each provincial situation is different. 

“I think it’s challenging to directly compare our jurisdictions. The legislative framework I’m sure is different, they’re at a different stage of the pandemic. But I just wish them the best of luck dealing with a challenging situation and I’m sure they’re doing everything possible to keep the process accessible for voters.”

Election Lessons: Saskatchewan

Saskatchewan’s general provincial election was fixed to October 26, 2020, with the writ dropped on September 29. The Saskatchewan Party was elected to its fourth consecutive majority government. 

According to Elections SK, the agency worked since April 2020 to determine how it could most effectively deliver ballots to as many eligible voters as possible when COVID-19 was present and made voting safety a priority

“Changes to its authority made in May 2020 were regulatory and not legislative, giving the CEO authority to adapt but not change Saskatchewan’s approach to voting,” wrote Elections SK in a statement to the Independent. 

Elections SK says that regulatory changes to the CEO’s Authority gave the agency the ability to adapt the existing Absentee Ballot to an expanded vote-by-mail option for use by voters unable to access in-person polls. Delivering ballots kits could be guaranteed via Canada Post from August 15, 2020 and ending October 15, 2020. 

Beginning October 16, 2020 and until October 20, 2020 the system was further adapted to use couriers and messengers that could guarantee delivery of ballot kits before the October 26 poll date to those required by law to quarantine or remain in community lockdown.

Following October 20, 2020 couriers and messengers could no longer deliver physical ballots to individuals in every part of the province in time for Election Day. The CEO did not have legislative authority to change the vote system in order to create other forms of voting, including internet or telephone voting.

According to Elections SK, “the requirement that certain voters self-isolate during election day was very unfortunate.”

Final turnout was the highest since the 2007 general election, with 445,011 ballots cast in 2020. Elections SK says they are continuing to focus on reducing barriers for all voters in future elections and will make recommendations to the Legislature focused on allowing flexible voting methods at all points in the election process.

Election Lessons: Canada?

Lessons from general elections in New Brunswick, British Columbia, and Saskatchewan, along with a by-election held in Prince Edward Island, were summarized in a special report to Parliament on conducting a federal election during the pandemic. The Standing Committee on Procedure and House Affairs prepared a report in December, 2020 titled ‘Protecting Public Health and Democracy During a Possible Pandemic Election’.

“At the heart of the Committee’s study of the conduct of a federal election during the COVID-19 pandemic is the well-established right to vote that belongs to all Canadians,” reads the report. “Even the onset of a global pandemic should not disenfranchise any eligible voter. A federal general election held in the absence of the COVID-19 pandemic remains a very large, complex and difficult undertaking.”

It stresses that—at the time of publication—many provinces and regions have seen the number of Covid-19 cases increase to levels approaching or exceeding levels measured in spring 2020. 

It goes on to state that Chief Electoral Officer Stéphane Perrault told the Committee that: “[a] national election is a logistical feat in the best of circumstances, and these are not the best of circumstances.”

The Committee makes a number of recommendations to the House of Commons in order to provide Elections Canada with the tools necessary to administer a safe and accessible election in the context of the COVID-19 pandemic. 

“While the Committee is confident that Elections Canada has made the necessary plans and arrangements to deliver a safe and accessible federal election, the COVID-19 pandemic has dictated that legislative amendments will be necessary to facilitate this task,” reads the report. 

Recommendations include: extend the voting period, provide flexibility for administering the vote in long-term care facilities, and provide the CEO with power to adapt the Act to respond to problems created by the pandemic.

The report concludes with the following recommendation:

“That the Canada Elections Act should be temporarily amended to explicitly allow for the Chief Electoral Officer to adapt the Act where it is necessary for safety, health or security reasons, in consultation with public health officials and the Advisory Committee of Political Parties, provided that reasons are given for each adaption and that these adaptations are publicly communicated along with the reasons.”

Be Prepared

Dr. Amanda Bittner is a professor in the department of political science at Memorial University who has expertise on voter turnout and public opinion.

Bittner doesn’t mince words about the province’s current electoral challenges. 

“At this point, this is a disaster,” she told the Independent. “This is not the kind of thing you expect to see in a relatively well-established democracy where we take for granted expectations of free and fair elections. Process is really important, and this highlights what happens when process is not thought about and everything gets derailed.” 

She stresses that a reasonable degree of planning is to be expected from electoral management bodies—including disaster planning. 

“Part of pandemic planning and part of disaster planning includes all scenarios. So it’s really clear at this point that there were zero scenarios considered beyond a little extra PPE and some social distance. And that’s really pretty frightening.”

Bittner says that the legislation needed work before the election was called. She expresses doubt that the existing legislation allows for day by day changes, constant postponements, and a full move to special ballot voting.

“They need to be flexible. But the need to be flexible and creative was a year ago when ideas were being put forward or should have been being put forward, and clearly weren’t.” 

She emphasizes that confusion or difficulties encountered in voting are detrimental to voter turnout and can underline socio-economic inequalities. She says that advance poll voters who have already voted tend to be politically engaged and generally more privileged. 

“The confusion overall is a real shame. Because elections and politics are complicated no matter what, and are already confusing just as a default,” said Bittner. 

Bittner worries that there are many groups who will not be represented in election results, including those who tried to vote and could not due to busy phone lines or online registration system outages.

“The odds of them calling back again are not high. So the level of dedication that [this] requires is much higher than the average voter’s dedication to elections.” 

“We need to place the individuals who are most vulnerable at the centre of that planning. Because the privileged will always find ways to get what they need, including to vote. And everybody else gets chucked by the wayside. And that’s shameful,” said Bittner. 

Bittner stresses that the current situation Newfoundland and Labrador now finds itself in—while unprecedented—was avoidable. 

“I hate to even guess at this point what’s going to happen or what’s possible, because none of this was possible. But none of this had to have happened had there been planning. That’s the part that’s bizarre.” 

What Now?

Dr. Kelly Blidook is an associate professor at Memorial University’s department of political science with specialties in political and legislative behaviour.

He published a video assessing the problems with the 2021 Newfoundland and Labrador Election. In it, he describes the basic structure of democratic government in the province, how irregularities in the election create uncertainty that relates to that structure, and how that uncertainty should be addressed.

“We do actually have a significant number of irregularities here,” Blidook explains. “They cause confusion surrounding the election and whether or not it’s legitimate. So we need to keep that in mind. These risks that we’re talking about here are very significant. And we need to be aware of them regardless of who claims victory.” 

He outlines several potential paths forward post-election—and the potential consequences of those paths. One avenue is to treat the election as ‘certain’, with a premier and cabinet governing as usual with confidence of the legislature. 

He said that a premier may be faced with an uncooperative legislature in this case. Another risk is that any actions taken (such as on laws or budgets) may be left in limbo if court challenges later determine that elections in certain districts—or in all districts—were illegitimate.

“Quite frankly, at the end of the day, if the courts do invalidate elections and this is the avenue we took, this is the worst possible scenario of all of the possible scenarios,” said Blidook. “It is a good deal worse than any other scenario that we might find ourselves in.”

Another potential path is to treat the election as ‘uncertain’, where the Premier/cabinet maintains a caretaker role. The legislature could sit temporarily without executing full executive authority. 

If this were to happen, two possible scenarios would be to wait for the courts to clarify the legitimacy of the election, or to hold a new election relatively soon. 

“There are risks involved here, but I would say that they are significantly smaller than with the previous avenue,” said Blidook. 

Risks of this approach include an extended period of limited government with potential impacts on the ability to spend—though with special warrants this may not be a significant issue. Another risk is the cost and fatigue involved with holding another election. 

“I understand that being problematic,” said Blidook. “But I would also say that this exists no matter which avenue we choose. The likelihood of another election is probably not insignificant in any of these scenarios. It’s possible that we’ll have to accept that the election is uncertain, potentially illegitimate, and that moving to a new election is actually the best way to get back to usual”

Blidook stresses that his assessment is intended to serve as a starting point for discussions, and highlights the need for cooperation prior to the announcement of election results. 

“Newfoundland and Labrador, we can do this,” concluded Blidook. “It will take some agreement by parties and it will take agreement before the election results are known. Before they begin jockeying for their own interpretation of those results.” 

“Right now this needs to be less about who wins and who loses. It can be that again soon, but right now parties and citizens need to see beyond questions of who will be premier, and focus on questions of how we can ensure that we are effectively democratic.”

Main photo by Drew Brown. Infographic by Alicia Morry and Sarah Brown.

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