New Brunswick’s chief electoral officer is calling for a mechanism to stop or delay the spring local government elections in the event of a COVID-19 outbreak.
Kim Poffenroth told the committee of privilege, procedures and legislative officers (PPLOC) on Friday that she would like to see legislation introduced laying out how exactly the election could be postponed if areas of the province entered a lockdown ahead of polling day in May. But she says the authority should not rest with her.
“If the province, or a portion of the province, were in a complete lockdown, suspension of the election, perhaps in a particular zone, is likely the best alternative, but there’s still no authority in myself to do that,” Poffenroth said.
“I’m still of the opinion that delaying a democratic election should not be at the discretion of one appointed … civil servant.”
The impact of a widespread COVID-19 outbreak on an election is a contingency being dealt with in a not too distant jurisdiction.
The provincial election in Newfoundland and Labrador has been derailed by a spike in COVID-19 cases. The chief electoral officer of that province initially suspended in-person voting in close to half of the province’s electoral districts, later pushing the date of the election province-wide and mandating that all voting will take place by mail.
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Poffenroth told the PPLOC that conducting a province-wide election entirely by mail is not an option in New Brunswick.
“It’s not something that we are currently structured or set up, either legally or the infrastructure, to actually administer a province-wide vote-by-mail,” Poffenroth said.
Constitutional lawyer Lyle Skinner agrees with Poffenroth, that there is no authority granted by the Municipal Elections Act to make changes to polling day, but he says in an emergency situation the legislative assembly could make changes to act.
“In a municipal election, presumably there is still MLAs and there is still an assembly, so if there needs to be emergency changes to stop or make modifications to the conduct of a municipal election, they can still occur because you have a legislative assembly that is still sitting,” Skinner said.
The idea is not particularly far-fetched and happened in the province close to a year ago. On March 17, 2020, as the COVID-19 pandemic began arriving in the province, MLAs quickly passed an Act Respecting Elections in 2020 which postponed local government elections for up to a year.
But that scenario is not possible during a provincial election, when the assembly is dissolved by the lieutenant-governor at the outset of the writ period. Poffenroth says a process is needed to address what would happen should an election be disrupted by a natural disaster or a war.
“It definitely needs to be addressed, but it should only be available under very clear extenuating circumstances,” she said.
Whether a provincial election could be stopped once called was a topic of discussion leading up to, and in the opening days of, the late summer campaign in New Brunswick. During that campaign premier Blaine Higgs told reporters that he believed the election could be stopped if there was a wide-spread outbreak.
After several days of reporters asking questions about where the authority to cancel the election came from, Higgs told CBC New Brunswick that he had a legal opinion from government lawyers that it would be possible to stop the election through the department of Public Safety.
An interview request to discuss that legal opinion, and if it would apply to municipal elections, was declined on Monday. In a statement, spokesperson Jean Bertin said the premier will look to work with Poffenroth to ensure appropriate safeguards are in place for the spring municipal elections and did not address the legal opinion regarding the provincial election.
“We will seek the guidance of Public Health as we move forward, and work with the Chief Elections Officer on these matters, including possible legislative amendments. We want to ensure the municipal elections are conducted in a safe manner,” Bertin wrote.
In his scan of relevant legislation, Skinner says he’s been unable to figure out what mechanism was referred to during the provincial campaign.
“I don’t see how they have that power,”
“Last spring New Brunswick was in a state of emergency and legislation was still required to make changes to both the Municipal Elections Act and the Elections Act.”
The Elections Act is exempt from the Emergency Measures Act meaning an election couldn’t be cancelled through a state of emergency order, and it took new legislation to postpone local government elections and two provincial by-elections scheduled for the summer.
But legislation allowing an election to be cancelled is not unheard of in the region. Skinner says both Nova Scotia and Prince Edward Island allow polling day in any riding to be cancelled in the case of an emergency by cabinet if the chief electoral officer recommends it. In P.E.I., the election must be rescheduled within three months.
Even New Brunswick’s Election Act allows polling in a riding to be postponed if one of the candidates dies during the campaign.
Most importantly, any change should be subject to a “two-factor authentication.”
“It’s important that because we’re dealing with New Brunswickers’ democratic rights; it shouldn’t be the decision of any one person. That’s why the model of having the chief electoral officer, who is appointed as an independent, non-partisan officer to make the initial assessment and then cabinet who then has the ultimate responsibility for making the decision.”
“Modifying election dates should not be subject solely to political actors for reasons that are obvious.”
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