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Karl Nerenberg has been reporting on federal politics from Parliament Hill for rabble.ca since September, 2011. In his long career, he has won numerous awards as a broadcaster and documentary filmmaker.

U.S.-style voter suppression comes to Canada: Can the Courts nip it in the bud?

| November 6, 2012
U.S.-style voter suppression comes to Canada: Can the Courts nip it in the bud?

It is entirely appropriate that lawyer Steven Shrybman, acting on behalf of the six Canadians seeking redress in the voter suppression (aka "robocall") case, should submit his factum to the Federal Court just as the Americans are voting.

Voter suppression in this country is, in fact, a fairly recent import from the U.S. 

Anyone watching the U.S. election and seeing the long, nearly endless line-ups of largely minority voters, in crucial "swing" states, will get a hint at what systematic voter suppression is all about.

In the U.S. elections are managed not by a neutral and impartial body such as Elections Canada, but by partisan elected officials, who are all too often unabashed about using their authority to advance their own side's cause.

In Florida, the Republican legislature voted to limit advance voting, by allowing only one polling station per county and by ending the Sunday-before-election-day advance poll. That’s when black churches used to do their "souls to the polls" voter drives. 

In both Ohio and Florida, political operatives purporting to be officials giving useful information have been intercepting citizens on their way to the polls -- especially the young and members of visible minority groups -- and falsely telling them they need photo ID in order to vote.

Identifying 'non-supporters' and deterring them from voting

 The Canadian suppression case, going back to the 2011 election, is also about discouraging non-supporters from voting. 

In the Canadian case, those seeking to suppress the vote called identified non-supporters pretending to be from Elections Canada, and told them (falsely) that their polling place had been moved. 

To engage in this sort of fraudulent activity one needs detailed data about voters, which American political parties have been gathering for quite some time. 

In his factum, lawyer Shrybman writes:

"Using information about non-supporters has become a common phenomenon in the United States. There, voter suppression during elections has been a historical fixture, and was widely reported to have taken place in the 2006 and 2008 elections. The modern techniques of voter suppression ... have become more surreptitious ... Indeed, in recent American elections, the use of harassing and misleading phone calls, as well as e-campaigns involving misinformation about voter registration requirements or polling locations, have become increasingly common."

In Canada, Shrybman tells the Court, we had not seen any of this until the most recent federal election, in 2011.

The Chief Electoral Officer considers this kind of vote suppression to be a very disturbing new development. He is especially outraged that anyone would have the gall to pretend to be Elections Canada. 

The Canadian Supreme Court has clearly stated, on more than one occasion, that depriving citizens of their vote through fraud fundamentally undermines the democratic process. 

In his factum, Shrybman quotes a number of key Supreme Court decisions on the right to vote.

In a 2003 decision, the Court stated: 

"Democracy, of course, is a form of government in which sovereign power resides in the people as a whole. In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives ... Absent such a right, ours would not be a true democracy."

Shrybman's factum argues that what appears to have been a deliberate attempt, on the part of a political party, to stop identified non-supporters from voting constitutes a grave affront to democracy.

A difficult case, relying on poll-derived evidence

The evidence Shrybman presents is, admittedly, complex. 

There is much smoke, but -- so far -- no identifiable smoking gun. The people who engaged in the voter suppression in 2011 were careful to cover their tracks. In fact, Elections Canada is still trying to hunt them down, without success, to date. 

To make his case, Shrybman relies, to a significant degree, on statistical data gathered by pollster Frank Graves. That data strongly suggest that non-Conservative supporters were targeted, in 2011, and in sufficient number to justify the Federal Court’s overturning the results of the last election in six ridings. 

The factum explains Graves' findings in detail, and answers the objections of an expert witness hired by the six Conservative MPs elected in the affected ridings.

The issues are quite technical and range from the acceptable margin of error to the reliability of memory. 

How much faith can we put in people’s recollections of a phone call they might have received more than a year ago? 

Shrybman, Graves and another expert who agrees, in general, with Graves, argue that memory works in a selective way.  It may be easy to forget what you had for supper last night. You have supper every day, after all. But it would harder to erase the vexing memory of even a single annoying robocall you received a year ago telling you, falsely, that a polling place had been moved. 

Psychological studies, Shrybman argues, show that people do not forget that sort of thing. 

Disenfranchisement imperils democracy 

The Federal Court will have its hands full dealing with all of the complex and technical issue of this voter suppression case.

The Court's decision will be precedent-setting, and it will, no doubt, be very mindful of that fact. 

In the end, though, Shrybman hopes the Court will focus not only on the individual "trees" of this tangled case but also on the over-all configuration of the "forest."

There is a big picture here, and, even if it will be difficult for the authorities to catch the culprits red-handed, the Court might want to consider the danger of allowing such fraudulent behaviour to stand without any redress whatsoever. That could open the floodgates to the massive voter suppression we see elsewhere. 

Shrybman as much as argues that the Court should be extremely concerned about allowing this type of voter suppression to become a permanent feature of Canadian political life.  That would be a much worse consequence, he argues, than overturning the voting results in six ridings, and forcing six little by-elections. 

To buttress that central argument, Shrybman has not had to seek any further than the Supreme Court's most recent decision on an electoral case, the majority ruling in the Etobicoke Centre appeal by Conservative MP Ted Opitz. 

That is the case where the Supreme Court overturned a lower court’s ruling that a new election must be held, because of voting irregularities. 

"A major concern to the majority decision in Opitz," the factum states, "Was that voters who were properly entitled to vote should not be needlessly disenfranchised as a result of ... errors. In contrast, the fraud alleged in this [suppression] case seeks to disenfranchise voters by misdirecting them to incorrect polling locations. If anything, the serious consequences of this fraud should mandate in favour of a broader, more liberal interpretation of the Applicants’ burden and onus ..."

Shrybman's main point is that even though the Supreme Court ruling in Opitz expressed a great reluctance to overturn an election result, the Court's arguments in that case actually support overturning the six results in the suppression-robocall case. 

The factum cites the way in which the Supreme Court’s Opitz decision gives very great weight to the need to assure that all voters actually get to exercise their franchise.

"Where electoral legislation is found to be ambiguous," the Opitz ruling says, "It should be interpreted in a way that is enfranchising."

Graves' research concludes that several thousand people in the six ridings at issue in the suppression case were, effectively, disenfranchised -- and disenfranchisement is something the Supreme Court has clearly said it entirely abhors.  

We will find out soon enough if the Courts can provide some meaningful and tangible remedy to that offence to democracy. 

 

Karl Nerenberg covers news for the rest of us from Parliament Hill. Donate to support his efforts todayKarl has been a journalist for over 25 years including eight years as the producer of the CBC show The House. 

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Steven Shrybman's factum is available online HERE. (.pdf)

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