Dealing with Voting Irregularities in a Municipal Election
February 2017
Sometimes the ballot box does not conclusively determine the result of a municipal election. Allegations about irregularities at the polling station can threaten the legitimacy of an election and throw the results into dispute. Two decisions recently released by the Supreme Court of Nova Scotia address the issue of voting irregularities and contain important lessons for municipalities.
District of St. Mary’s
The first decision, Re St. Mary’s (District) 2017 NSSC 8 (“St. Mary’s”), originates from a close race where after the final count, the candidates were separated by only two votes. There were five irregularities under the Municipal Elections Act, RSNS c 300 (the “Act”), including:
- A voter voted by proxy without following proper protocols;
- During the vote-counting, an agent for one candidate handled a spoiled ballot and a basket of cast ballots;
- Ballot boxes for two polls were delivered to the Returning Officer unsealed;
- Poll Agents at two polling stations did not sign the Oath of Confidentiality; and
- Returning Officers at two polling stations did not complete the Records of Poll.
A vote is not void just because an irregularity occurred. The irregularity must be serious enough to break the fundamental principles of the Act. The Court has the authority to declare a vote void, but its power to do so is limited.
The test is not whether any irregularities would have altered the result, but whether they could have.
In St. Mary’s, the leading candidate claimed that the irregularities were technical violations that did not affect the results. The Court rejected this argument. The Court considered the effect of the irregularities taken together. It was clear that several procedural safeguards required under the Act were not followed, and that these departures represented clear and serious violations of the Act. For this reason, the vote was declared invalid. A by-election will be scheduled for later this year.
Pictou County
The second decision is from Pictou County, Re Pictou County (Municipality) 2017 NSSC 13 (“Pictou County”). Three candidates were vying for a council seat. When the results were tallied, the successful candidate won by a single vote over the second place candidate. The third place candidate finished far behind.
After the polls closed, it was discovered that a ballot box had been removed from the polling station. When the irregularity was discovered, the Municipality applied to Court to determine whether the vote was valid. The Municipality took no position on the validity of the vote. The second place candidate sought a declaration that the results of the vote were void. The successful candidate argued that the vote should stand.
The circumstances leading to the irregularity are straightforward. The ballot box was taken to the home of an older couple who were unable to attend at the polling station. A polling clerk and Deputy Returning Officer took the ballot box to the couple’s home, which allowed both individuals to vote.
The ballot box was away from the polling station for less than ten minutes. The ballot box never left the sight of the polling clerk and the Deputy Returning Officer. No ballots were removed from the ballot box and the only ballots placed in the box were those cast by the older couple. While the box was away from the polling station, no one left the station without voting.
The removal of the ballot box was a clear violation of the Act. The issue was whether this action was a substantial breach of the Act.
The Court held that removal of the ballot box, while violating the Act, did not mean that the vote was void. In this case, there were no ineligible ballots cast and no one was denied the opportunity to vote. Further, there were no allegations of tampering or any other interference with the ballot box. Instead, the removal was done in a misguided, but nevertheless, well intentioned effort to allow an older couple to vote.
Accordingly, the results of the elections were upheld by the Court.
Conclusion
These recent decisions help explain the types of errors and irregularities which may lead to a vote being declared invalid. Municipalities should take great care to ensure that the provisions of the Act are understood and followed by everyone working at the polling stations.
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