(WINDSOR, ON) – When holding an election at the municipal level in Ontario, there is no higher reference for everything from the duties of the presiding clerk to compiling the voters list and conducting the election process, there is no higher authority than the Municipal Elections Act. There really is no debate when issues arise since the MEA is quite clear with no room for interpretation.
When it comes to using any method to count votes, other than the tried and true way of counting by hand, municipalities including Windsor must pass a by-law authorizing the use of “voting and vote-counting equipment.” The MEA is further instructive by demanding that the by-law must be passed by City Council on or before May 1 in the year before the year of the election.
In other words, for the 2018 election to be held on October 22 Windsor was required to pass a by-law authorizing the use of vote tabulator machines sometime between January 1 and May 1 2017.
By-laws re voting and vote-counting equipment, alternative voting methods
42 (1) The council of a local municipality may pass by-laws,
(a) authorizing the use of voting and vote-counting equipment such as voting machines, voting recorders or optical scanning vote tabulators;
(b) authorizing electors to use an alternative voting method, such as voting by mail or by telephone, that does not require electors to attend at a voting place in order to vote. 1996, c. 32, Sched., s. 42 (1).
Application of by-law
(2) A by-law passed under subsection (1) or under a predecessor of it,
(a) applies to a regular election if the by-law is passed on or before May 1 in the year before the year of the election; and
(b) applies to a by-election if the by-law is passed more than 60 days before voting day. 2009, c. 33, Sched. 21, s. 8 (22); 2016, c. 15, s. 31 (1).
Windsor has not passed any such by-law. In fact, when pressed on the matter, city officials try to fall back on a 1996 by-law. This is clearly in contravention of the MEA.
If the City Clerk, Valery Critchley, or Manager of Elections, Chuck Scarpelli, truly believe that the 1996 by-law is sufficient to meet the intent and spirit of the MEA, then they are not fit to hold their positions. If, instead, they are simply trying to pull the wool over the eyes of voters, then you decide what should become of them.
The pair failed to follow the MEA in 2014, as well.
Considering the history of election management in Windsor, it should be no surprise to anyone that a diligent group of residents is demanding that the city hold the 2018 election in compliance with the MEA. A ministerial review of the MEA with regards to the vote tabulators was requested of the Ministry of Municipal Affairs and Housing.
“Thank you for your question regarding by-laws authorizing the use of alternative voting method or vote-counting equipment,” the reply, from Senior Policy Advisor Adam Kirsh, read in part. “For a municipality to pass a by-law authorizing an alternative voting method or the use of vote-counting equipment in a regular election, council must pass a by-law by or on May 1of the year before the election. For example, for a by-law authorizing the use of an alternative voting method or vote-counting equipment to apply to the 2022 municipal election, council would need to pass a by-law on or before May 1, 2021.”
The Windsor residents are now pursuing other avenues to head off a controverted, or null-and-void, election in Windsor.
83 (1) A person who is entitled to vote in an election may make an application to the Superior Court of Justice requesting that it determine,
(a) whether the election is valid;
(b) whether a person’s election to an office in the election is valid;
(c) if a person’s election to an office is not valid, whether another person was validly elected or is entitled to the office;
(d) if an election is not valid or a person’s election to an office is not valid, whether a by-election should be held. 1996, c. 32, Sched., s. 83 (1); 2002, c. 17, Sched. D, s. 34 (1).
(2) The application shall be commenced within 90 days after voting day. 1996, c. 32, Sched., s. 83 (2).
If Windsor pushes forward with their intent to use vote tabulators despite not complying with the MEA, then every Deputy Returning Officer at each poll within the city has a decision to make at the end of election day; whether or not to determine if the ballots fed into the machines can be counted.
Counting of Votes
Counting of votes
54 (1) Immediately after the close of voting on voting day, the deputy returning officer shall open the ballot box for his or her voting place and proceed to count,
(a) in the case of an election for office, the number of votes for each candidate;
(b) in the case of an election to obtain the assent of the electors to a by-law, the number of votes in favour of the by-law and the number opposed to it; and
(c) in the case of an election to obtain the opinion of the electors on any question, the number of votes for each possible answer to the question. 1996, c. 32, Sched., s. 54 (1).
Rejection of ballots
(2) The deputy returning officer shall reject from the count all ballots and votes in a ballot that do not comply with the prescribed rules. 1996, c. 32, Sched., s. 54 (2).
In fact, DROs don’t get to make a decision at all. The MEA clearly states that they “shall” reject the ballots.
All this can be avoided by city officials. All they have to do is recognize that they are running afoul of the MEA and, simply, must return to hand counting ballots on election day and during the advance polls. Otherwise, Windsor voters could be returning to the polls to again cast votes during a election overseen by independent observers.
Windsor won’t be alone in this situation, however. Tecumseh and Lakeshore have also failed to pass the required by-laws authorizing vote tabulators and alternative voting methods.
The next three months will be interesting this lawless frontier of the province.