N.L. axes in-person vote night before election
Sudden switch to mail-in ballots after tests linked outbreak to B.1.1.7 variant
Voters in Newfoundland and Labrador will not be heading to the polls as planned on Saturday.
In response to tests identifying one of the more contagious variants of the coronavirus as the cause of the outbreak spreading through the most densely populated part of the province, Chief Medical Officer Dr. Janice Fitzgerald on Friday night announced that the province would be immediately moving to Alert Level 5, its most restrictive level.
In turn, Chief Electoral Officer Bruce Chaulk ordered the suspension of in-person voting for the whole province.
“I am suspending in-person voting for all 40 provincial electoral districts,” he said in a release. “In-person voting will not be rescheduled. The election will now shift exclusively to voting by mail, using Special Ballots.”
It’s a move that will surely increase scrutiny on Newfoundland Premier Andrew Furey, who has been heavily criticized for pushing ahead with an early election in in the midst of a pandemic, in a province that has largely been spared the worst ravages of the health crisis.
Opposition parties had called for the election to be postponed, and provincial legislation would have allowed Furey — who took the helm of his party after the resignation of former premier Dwight Ball in August — to schedule an election as late as August. Furey is trying to turn his Liberal minority government into a majority.
In an unusual late Friday night briefing, the chief medical officer announced that tests had identified the coronavirus causing the outbreak in the area around St. John’s as one of the highly contagious variants first spotted in the U.K., the B.1.1.7 variant.
“We know that if not controlled, it becomes a predominant strain within weeks of first appearance,” Fitzgerald said.
Earlier in the day, Fitzgerald had announced another 50 new COVID cases, down from 100 the day before.
That left a total of 260 active cases from the current outbreak — almost 40 per cent of all the cases recorded in the province over the duration of the coronavirus epidemic.
Under the province’s Alert Level 5, gatherings of more than five people are prohibited, indoor recreational activities are shut down, and restaurants, bars and non-essential stores are closed.
Before suspending in-person voting, CEO Chaulk had on Thursday hit the pause button on voting in almost half of the province’s ridings — those hit by the outbreak — for at least two weeks. In that statement, he cited the mass resignation of election workers who feared contact with the public on Election Day.
Experts said at the time that that could open the results up to legal challenges. Cancelling in-person voting and extending the deadline for mail-in ballots to March 1, as per his latest statement, is unlikely to change that opinion.
“There’s a lot going on, and a lot of that is obviously quite problematic from either the administrative point of view, on the one hand, or legal point of view on the other hand,” said St. John’s lawyer Geoff Budden, who has himself previously challenged the province’s electoral legislation on a separate matter.
Chaulk has cited Section 10 of the Elections Act as his authority. That section, in part, says that in “unusual or unforeseen circumstances” the chief electoral officer may “extend the time for doing an act … or otherwise adapt a provision of this Part to the execution of its intent.”
“That section does allow me to change the election date and make changes as necessary in order to adhere to the legislation,” Chaulk said Thursday.
But some legal experts have taken a different view.
While Section 10 says, in general terms, that the chief electoral officer has the authority to extend certain deadlines, there is nothing that specifically says he has the power to extend an election campaign.
“It seems quite a stretch to say (it empowers) the chief electoral officer to do what he’s doing. Quite a stretch,” Budden said. “It certainly doesn’t say on its face that the chief electoral officer is powered, if he sees fit, to extend the election beyond the polling date, as it was established when the writ was dropped.”
The province’s Elections Act specifies that when a general election is being held, “it shall be held on the same day in each district.” It also states that the maximum length of time for a campaign is 35 days after the election is announced.
The original election day on Saturday sits on the 29th day after the writ was dropped. With the extension until March 1 for mail-in ballots to be received, that would elongate the campaign to 45 days.
“There’s nothing that explicitly permits this,” said Budden. “I find it a stretch to say that there’s some sort of implicit authority by any reasonable reading of Section 10. That seems to be the consensus of commentators, both national and local.”
That alone, said Budden, cracks the window open for potential — and probable — legal challenges.
While legal challenges that overturn results in individual ridings are not rare, a court action that encompasses all of the ridings in a province could be unprecedented. In a worst-case scenario, some have speculated, legal action over the chief electoral officer’s authority to take actions during an election could lead to a redo of the entire election.
“I don’t envy Mr. Chaulk,” Budden said. “There’s no obvious solutions here. It’s a question of least bad choices.”
“We know that if not controlled, it becomes a predominant strain within weeks of first appearance.” N.L. CHIEF MEDICAL OFFICER DR. JANICE FITZGERALD