Elections Canada may be investigating robocalls and other voter suppression tactics. But Elections Canada cannot overturn the results of an election in a given riding.
The only chance of overturning results of the 2011 election in any of the 308 ridings is the through the Federal Court.
That is why the Council of Canadians is supporting legal actions on the part of individual Canadians to overturn the 2011 results in seven ridings throughout Canada.
The Council's lawyer, Steven Shrybman, explains that Canadian electoral law provides that only aggrieved voters may seek court orders to "restore their franchise." Neither Elections Canada, nor anyone else, can do that. The result of such court orders would be significant -- they could mean by-elections.
The Council of Canadians provided reporters with one of the seven "Notices of Application," the case of the northern Ontario riding Nipissing-Tamiskaming, where the Conservative defeated the Liberal candidate by only 18 votes.
The "Notice" document points out that Canadian electors have the legal right to contest elections in their ridings if, in the words of the law, "there were irregularities, fraud or corrupt or illegal practices that affected the result..."
If the court finds that the legal grounds are satisfied, it "shall declare the election null and void."
Shrybman is quick to point out that this has never happened in Canadian history, at least not in relation to criminal activity. Previous overturned elections were based on technical issues.
"We are in uncharted waters here," Shrybman says.
In the view of the Council of Canadians, it will not be necessary to show that the number of voters not voting because of misleading robocalls was greater than the margin of victory.
The Council argues that the law only requires that the applicants must show there was sufficient illegal stuff taking place that it would be reasonable to conclude that the results of the last election, in the ridings in question, were not legitimate.
A chance to find out what calls were made, and to whom?
One strategy the Council and its legal counsel will likely use will be to call the operators of robocall companies such as RackNine as witnesses, and subpoena all of their relevant records. That would make it possible to see what misleading information those calls conveyed and to whom the calls were made.
In making its arguments, the Council may also call on a newly published research paper on the possible impact of robocall tactics in the last election.
The paper is called "Does misinformation demobilize the electorate? Measuring the impact of alleged 'robocalls' in the 2011 Canadian election."
The authors are two British Columbia researchers, Anke Kessler and Tom Cornwall, who only published their preliminary draft less than two weeks ago.
Using a complex statistical methodology, Kessler and Cornwall show that "in those ridings where allegations of robocalls emerged, turnout was an estimated 3 percentage points lower on average."
That meant an average of 2,500 voters per riding who did not go to the polls, quite possibly because of robocalls.
The authors readily admit that although there is a literature on voter suppression based on such "turn-off" factors as negative advertising, there is little scientific work on suppression of the vote by means of illegal activity.
It is difficult to conduct a controlled experiment on that sort of the thing, the authors explain, for ethical reasons. Researchers cannot commit fraud to find out if "crime pays."
A clear pattern of diminished voter participation
And so, the emerging robocall investigations provide what may be the first opportunity to explore the impact of what might have been an unprecedented, organized campaign of fraud and deception, designed to keep targeted groups of voters away from the polls.
Although their results will certainly be challenged by some, Kessler and Cornwall believe they can show a clear pattern of diminished voter participation that is correlated with the prevalence of robocalls, and not merely coincidental.
The Council of Canadians did not commission this research, but its legal counsel will almost certainly attempt to introduce it as expert evidence.
The research could help establish a basis for nullifying an election in a given riding, even if the "applicants" could not produce "defrauded" voters in a number greater than the margin of victory.
"The fact is that people who did not vote because they were misdirected by robocalls may not be very interested in coming forward,"Shrybman explains, "They may find it embarrassing, or it may be something they would rather forget. What we have to show is that the robocalls caused a certain degree of non-participation, which had an impact on the election result."
New elections versus criminal charges
The Council of Canadians is not seeking to circumvent the Chief Electoral Officer's ongoing investigation.
That investigation has a different purpose than the court cases.
Elections Canada is investigating grounds for possible criminal proceedings.
The Council of Canadians seeks to have by-elections called where the evidence warrants.
In the case of court challenges, it is not necessary to establish the identity of the perpetrators of possible fraud.
All the court needs to determine is whether fraud or other illegal activity took place -- and on a sufficient scale that warrants nullifying results in certain ridings.
Aside from Nipissing-Tamiskaming, the other ridings where voters are "going to court" are Don Valley East (in Toronto), Elmwood-Transcona (in Winnipeg), Saskatoon-Rosetown-Biggar, Vancouver Island North, Winnipeg South Centre and Yukon.
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