ST. JOHN’S, NL – An Ottawa-based constitutional attorney says the ten-week Newfoundland and Labrador elections may still be on trial.
Lyle Skinner said there are several ways that Saturday’s provincial election results can land in front of a judge, and that could start with a recount in the St. John district where NDP chairman Alison Coffin lost by 53 votes .
“It’s … unlikely that a recount could solve that, but there was some concern about how special ballot papers were counted,” Skinner said in an interview on Saturday.
The election of Newfoundland and Labrador was scheduled for January 15, and the results of a largely mailed vote were announced on Saturday.
A COVID-19 outbreak in February caused officials to suspend face-to-face voting and switch to postal ballot papers.
What followed was a series of deadline extensions granted by the provincial election officer and controversy over his management of the flipped vote.
In particular, the NDP wrote a letter to election officer Bruce Chaulk on March 12, saying that its Technical Commissioner believed that an “unprecedented” number of special votes – including postal ballot papers – were deemed tainted, often for illegitimate reasons.
Skinner said that even if Coffin does not believe a recount would undo her narrow loss in the East-Quidi Vidi district of St. John, the recount would provide an opportunity to see if the votes in that district were inappropriately tossed aside, as the NDP feared.
According to provincial law, an automatic recount is triggered when there is a 10 vote difference, but candidates can request it differently, Skinner said.
Elections NL’s preliminary results on Saturday showed a 48 percent turnout, which Skinner said was higher than expected.
“While there is always a turnout of less than 50 percent, it is always worrying,” he said.
The Torngat Mountains district, which is home to indigenous communities flying along the north coast, saw a 22 percent turnout, compared with around 50 percent in the 2019 election. Both the NDP and progressive Conservatives wrote letters to Elections NL, in this month who worried that voters in that district would not get to the polls in time due to slow, weather-dependent postal services.
Skinner said anyone who feels that their right to vote has been denied has an opportunity to go to court, especially if they feel part of a group of disenfranchised voters whose ballots may have changed the outcome in their district. He also said civil liberties organizations have an interest and could help them in their struggle.
But Skinner said the election was the most vulnerable to judicial challenge because it wasn’t clear the laws gave Bruce Chaulk the power to postpone election day at all.
If someone takes this matter to court, a judge could decide that only votes cast before Feb.13 are valid, he said. Elections NL estimates that this would mean a turnout of 18 percent.
“The courts could look at that and say, ‘Well, that would probably justify voiding elections where you are challenged,” Skinner said.
Ultimately, election results could only be null and void by a court if voters or candidates successfully challenge the results of each of the 40 districts, he said.
“And that costs a lot of time and money.”
According to the provincial electoral law, anyone with the time, money and inclination must initiate their judicial challenge within the next two months, he said.
This Canadian press report was first published on Sunday March 28, 2021.