(WINDSOR, ON) – As already disclosed, the City of Windsor is attempting to rely on a 1997 by-law authorizing the use of alternative voting methods for the 2014 municipal election. In this case, the argument is that the by-law authorizes the DS200 vote tabulators to be used by the City.
Also already disclosed, the City’s stance is clearly in violation of the Municipal Elections Act (MEA).
“Our claim that the City failed to pass a by-law to hold an election with alternative voting tabulators is indeed a correct statement,” one of the complainants told The Square. “The City will be quite embarrassed if they continue to insist that they may rely on the alternative voting method by-law passed in 1997.”
The fact is, the City failed pass the required by-law in 2014, as set out in, and required by, the MEA. Instead, Windsor continues to claim it is following the law and refuses to admit their violation. They are also trying to convince others that their omission is justified.
“With a bit more digging, we reconfirmed what we knew,” the complainant continued. “The envisioned legal loophole the City of Windsor is trying to rely on is, in fact, not a loophole at all.”
Canvassing other municipalities in Ontario revealed that those jurisdictions properly passed the required by-law before the June 1 deadline, as stipulated in the MEA. There was only one other instance where a town failed to abide by the legislation.
In 2009 the MEA was changed as part of an omnibus bill and the language of the act became more specific, in particular the phrase. “in the year of the election.” In other words, the June 1 stipulation was not part of the 1996 version of the MEA, but was included in an amendment in 2009.
The investigative team turned to Hansard, the written journal of debates in the Ontario Legislature. On November 4, 2009, Queen’s Park discussed the very phrase that has tripped up the City of Windsor.
June 1 would be established as the deadline for a number of administrative activities. These would include passing bylaws that would authorize the use of voting equipment and vote-counting equipment or authorizing the use of alternative voting, such as mail-in ballots or Internet ballots.
The loophole that City of Windsor administrators are trying to use is just a convenient misreading of what is very clear law. Instead of admitting their mistake, the City is now compounding their error by denying it.
Is this negligence or is this wilful?
[Key dates in the election calendar: Voting day in regular elections is moved to the fourth Monday in October. Nominations must be filed by 2 p.m. on the second Friday in September. June 1 is established as the deadline for a number of administrative activities, such as passing a by-law authorizing the use of voting equipment and vote-counting equipment and authorizing the use of alternative voting. The deadline for candidates to file their financial statements concerning campaign expenses is 2 p.m. on the last Friday in March after the election. (See the proposed amendments to sections 5, 8, 31, 33, 36, 37, 42 and 65 of the Act.)]
In 2009, the specific section, 42 (2), (3), and (4), of the MEA were repealed and replaced.
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 June 1 in 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.
The predecessor section referred to is any previous subsection changes of the MEA in prior years. It is not a predecessor by-law passed by a municipality. Moreover, the phrase “in the year of the election” refers clearly to the calendar year in which the election is to be held.
Since the City of Windsor didn’t pass a by-law, as clearly required by subsection 42 (2) of the MEA, the City of Windsor also failed to properly follow the action required under subsection 42 (3).
Procedures and forms
(3) The clerk shall,
(a) establish procedures and forms for the use of,
(i) any voting and vote-counting equipment authorized by by-law, and
(ii) any alternative voting method authorized by by-law; and
(b) provide a copy of the procedures and forms to each candidate.
The City did not provide the necessary procedures and forms to inform the electorate of the specific tabulators that were proposed to be used in the October election. Nor was the use of those tabulators authorized under a by-law passed after three readings by City Council.
“The failure of the City cannot be attributed to procedural error,” the complainants conclude. “The City was well aware of this section of the MEA considering they made sure to comply with the rules regarding the publishing of Advance Poll dates and shortened hours at institutional polling places, as specified in section 43 of the MEA.
The excuse being used lately is one of procedural error. But it is just an excuse. It is not based in fact and is getting old really quickly.
The myriad of errors, of which the missing by-law is just one, cannot be reasoned away, by clear thinking persons, as innocent errors.
“These so-called professionals are being paid hundreds of thousands of dollars in tax-payer funds. They shouldn’t by piling errors upon errors in the management of our elections. Democracy is at stake here.”