Number of suppressed votes, doesn’t matter, lawyer argues

A recent Supreme Court ruling allows courts to overturn election results where there is evidence of fraud or irregularities even if the number of voters affected cannot be determined, the lawyer leading the robocalls legal challenge argued.

In Federal Court hearings Wednesday, Steven Shrybman said the case of Conservative MP Ted Optiz, whose 2011 election was challenged by a Liberal incumbent, specified two conditions in which future challenges could be upheld.

In October, the top court overturned a lower court decision setting aside Opitz’s election.

But in its ruling, Shrybman noted, the court said an election can be voided if “the number of impugned votes is sufficient to cast doubt on the true winner of the election or the irregularities are such as to call into question the integrity of the electoral process.” Shrybman urged Judge Richard Mosley to apply the same standard to his clients’ applications, which claim the results in six other ridings were affected by the misleading calls intended to suppress nonConservative votes.

Shrybman’s reading is intended to deal with a glaring problem his clients face: they cannot produce a list of voters who say they didn’t vote.

The Opitz ruling means the test for turning over a vote doesn’t depend on showing the number of votes affected was greater than the margin of victory for the winning candidate, Shrybman said.

Shrybman said it was clear from evidence his applicants had presented there was fraud or irregularities in the last election — specifically, a co-ordinated scheme to suppress non-Conservative voters.

Finding voters affected is hard, he said, because the people, like his clients, who come forward are already engaged in the electoral process.

“These are the people who care about the democratic process and democratic franchise,” Shrybman told the court. “They are not going to be easily deterred from casting their votes.”

“The people who we haven’t heard from are the people who are not that attached,” he added.

Mosely sounded unconvinced by Shrybman’s reading of the Opitz decision. He expressed doubt about overturning a result based on the reasonable belief that fraud or irregularities kept voters away from the ballot box.

“I’m not sure I’m entitled to surmise on that basis,” the judge told Shrybman.