The Fair Elections Act and the open letter

Melissa Williams, is a professor of political science and the founding director of the Centre for Ethics at the University of Toronto.

Along with Assistant Professor Yasmin Dawood of the Faculty of Law, Williams is also one of the experts on democracy who drafted an open letter published last week detailing problems with Bill C-23, the Fair Elections Act and calling on the federal government not to undermine Elections Canada.

Concerns expressed in the letter, signed by more than 160 scholars from across the country, have also been raised by journalists such as the editorial writers of the Globe and Mail and Andrew Coyne of the National Post. Their criticisms include everything from the lack of transparency and consultation in the drafting of the bill, to the contents of the act itself. 

Writer Kim Luke of the Faculty of Arts & Science spoke with Williams about Bill C-23 and the reasons for the widespread outcry that has included an eight-hour filibuster from New Democratic MPP Dave Christopherson and testimony from Canada's chief electoral officer.

What are the implications of the Conservative government’s proposed Fair Elections Act for democracy? Should the average citizen be concerned about the proposal?

The law would undermine Canadian democracy in several very worrisome ways. It would disenfranchise over 100,000 Canadian citizens. It would weaken Elections Canada and undermine Canada’s reputation as a world leader in electoral integrity and democratic inclusion. It would bring more private money into elections, and increase partisanship in the administration of the vote. The proposed changes to elections law strike at the very heart of democracy.

Who stands to benefit from the act? Who is negatively affected by it? Is there anything our students should be aware of/concerned about?

The losers from this bill include all Canadians who believe that the most fundamental political value in a democratic order is the right of every citizen to vote. The Supreme Court has recently underlined protecting that right as the highest priority in elections law. Still, some citizens will be more affected than others.

The voter ID restrictions introduced by the bill will suppress the votes of youth, including our own students here at UofT; First Nations citizens voting on reserves; of seniors in long-term care facilities; and the poor, especially the homeless. There is some uncertainty about whether this would benefit the Conservative Party, but at least three of these groups – youth, low-income citizens, and First Nations citizens – are less likely than other Canadians to vote Conservative. But seniors, who are more likely to vote Conservative, will also find it harder to vote if the bill is passed.

Other provisions would clearly advantage the Conservative Party. The bill introduces a “fundraising loophole” that would exempt fundraising expenses from campaign spending limits. This benefits the Conservatives because, to their credit, they have built up stronger fundraising machinery than other parties. Conservatives would also benefit from the bill’s provision that polling supervisors be selected from a list of nominees provided by incumbents or their parties. Since the Conservatives hold more seats than other parties, they would have more control over polling stations in the next election.   

Scholars often contribute to the public debate on important policy issues but it is relatively rare for them to do so en masse and in agreement.  What is it about this particular piece of legislation that mobilized this response?  (Where is the line between raising awareness/advocacy – is there a line?)

We – the small group of colleagues who initially drafted the open letter – were truly astonished by the intensity and scale of the response from colleagues across the country. Within three days of circulating the letter, over 160 professors from political science, law, philosophy and history expressed their wish to sign. It really is rare for that many professors to agree on anything! I think it says a lot about the seriousness of this bill’s threat to the fairness and integrity of our democratic system that so many people who study democracy joined forces so quickly. 

It’s true that there can be a fine line between political advocacy and raising public awareness of important issues. But in this case the line is very bright. The problems with the bill should be evident to people from every party, because they change the rules of the game in a way that tilts the playing field. 

They also violate international standards of electoral integrity, voter inclusion, and due process for changes to elections law. That’s why a group of the world’s most prominent elections scholars wrote a separate letter expressing alarm about the bill, saying that it would damage electoral integrity not only in Canada, but send the message to fledgling democracies that following international standards isn’t important.

The government says it needs to eliminate identity vouching to reduce voter fraud.  How big an issue is voter fraud in Canada?

Voting fraud is a real issue in Canada, as the robocall scandal of the last election makes very clear. But the bill doesn’t adequately address this genuine threat. Instead, by eliminating vouching and introducing other voter ID restrictions, the bill responds to an imaginary problem. There is simply no evidence that vouching is related to fraudulent voting. It’s a made-up problem. But the impact of the bill would be very real: it would deprive a great many citizens of their constitutional right to vote.

The bill does bring in some new provisions that would help prevent large-scale, systemic voting fraud such as we saw in the last election: a registry of companies that contact voters, increased penalties for fraudulent calls. But these would not be effective because the bill fails to give the Commissioner of Elections the tool he needs to get to the bottom of voting fraud allegations: the power to compel witnesses to testify. This power exists for other investigative agencies, and the Commissioner has asked for it, but the bill withholds it.

Majority governments have the power and the right to pass legislation over the objections of opposition parties.  Are electoral laws any different?

Formally, no. But according to both international standards and Canadian parliamentary traditions, major changes to electoral laws should be based on close consultation with opposition parties and with Elections Canada. That sort of consultation helps ensure that the laws are fair to all parties and that they can be implemented effectively. In this case, the bill was tabled without any prior review by Elections Canada or the opposition parties. In addition, the government has moved quickly to close parliamentary debate before sending the bill to committee, and has put it on a legislative fast track, further limiting public debate. This is a troubling departure from established norms.

What’s next – what can we expect to see when this debate picks up again in the House on March 25?

It’s always dangerous to make predictions in politics! The bill has come under a huge amount of criticism during Parliament’s recess, and no doubt the opposition parties will use this to turn up the heat on the government to make major amendments to the bill. We all have to hope, for the sake of our democracy, that they’ve been listening to reasoned argument and paying attention to the public’s disapproval of key features of this bill, and that appropriate amendments will be made before it is put to a vote.

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• Ryan Balot, professor of political science and classics
• Sylvia Bashevkin, professor of political science and past president, Canadian Political Science Association
• Ronald Beiner, professor of political science
• Joseph Carens, professor of political science
• Simone Chambers, professor of political science
• Rodney Haddow, associate professor of political science
• Joseph Heath, professor of philosophy and School of Public Policy and Governance
• Lawrence Leduc, professor emeritus of political science
• Audrey Macklin, professor and chair in human rights law, Faculty of Law
• Jennifer Nedelsky, professor of law and political science
• Kent Roach, professor of law
• Peter Russell, professor emeritus of political science and past president, Canadian Political Science Association
• David Schneiderman, professor of law
• Robert Vipond, professor of political science
• Lorraine E. Weinrib, professor of law
• Graham White, professor of political science and past president, Canadian Political Science Association