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Election 2019: Changes to the Elections Act, 1991

Voting by special ballot in the provincial election? You may have noticed some changes.

The Newfoundland and Labrador General Election will take place this Thursday, May 16th, 2019. While many electors vote in the polls on election day, many others choose to vote (or do so by necessity) at advance polls or by special ballot. The special ballot voting regime was changed in 2017 as a result of a Supreme Court of Newfoundland and Labrador decision by the Honourable Justice Gillian Butler. This is the first General Election in which the new procedure for voting by special ballot has been implemented.

Budden & Associates brought a constitutional challenge on behalf of Ms. Julie Mitchell, an NDP candidate who ran in the district of Burin-Placentia West in the 2011 General Election. The Elections Act, 1991, SNL 1992, c E-3.1 at that time allowed for the distribution and casting of special ballots prior to the writ of election being issued. By the official nomination date for candidates in 2011, 221 special ballots had already been cast. Ms. Mitchell won both the election day and the advance polls, but the incumbent candidate received more special ballot votes than did Ms. Mitchell. Ms. Mitchell ultimately lost by a margin of only 40 votes.

Ms. Mitchell’s constitutional challenge was successful, with the Honourable Justice Butler finding that the special ballot provisions contained in the Elections Act, 1991 violated s. 3 of the Canadian Charter of Rights and Freedoms, and were not saved by s. 1 of the Charter. Justice Butler wrote:

“[105] … Undeniably, the special ballot provisions improve a person’s ability to place a ballot in a box. But section 3 protects much more than that. It guarantees the right to meaningfully participate in the electoral process, both as a voter and candidate.”

In 2011, special ballot voters could complete their ballot by writing in the name of a candidate, their party, or both the name and party. However, official nominations did not close until after special ballot voting began.

Budden & Associates argued that when the law allows for special ballots to be cast prior to the writ being issued, this creates a potential disadvantage for candidates who may not yet be nominated. In addition, it was argued, this process provided potential advantages to an incumbent candidate, as well as potentially disadvantaging those candidates not affiliated with a political party in terms of their ability to fundraise. It was also argued that this procedure impacted the rights of the electorate to meaningfully participate in the electoral process given that those electors who had previously cast their vote by special ballot risked having their vote not count should candidates change prior to the official nomination deadline.

As a result of the decision of the Supreme Court of Newfoundland and Labrador, the legislature was forced to implement new special ballot provisions. An Act to Amend the Elections Act, 1991, SNL 2017, c-17 was assented to on October 20, 2017. Now, while electors may apply to receive a special ballot kit up to four weeks prior to the writ being issued, special ballot kits are no longer issued until after the close of nominations.

The decision was appealed but was recently upheld by the Newfoundland and Labrador Court of Appeal in their decision in Powers v Mitchell, 2019 NLCA 16. The Court of Appeal declined to hear the appeal on the basis that the issue had been rendered moot given that legislative amendments had already occurred.

Budden & Associates was pleased to represent Ms. Mitchell in this matter.

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