An Ottawa-based constitutional lawyer says Newfoundland and Labrador’s spiralling, 10-week election could still wind up in court.
Lyle Skinner said there are several ways for Saturday’s results in the provincial election to land before a judge, and it could begin with a recount in the St. John’s district where NDP Leader Alison Coffin lost by 53 votes.
“It’s … improbable that a recount could resolve that but there were some concerns about how special ballots were counted,” Skinner said in an interview Saturday.
Newfoundland and Labrador’s election was called on Jan. 15 and results from a mostly mail-in vote were announced Saturday.
A COVID-19 outbreak in February prompted officials to suspend in-person voting and switch to mail-in ballots.
What followed was a series of deadline extensions granted by the province’s chief electoral officer and controversies surrounding his management of the upended vote.
In particular, the NDP wrote a letter to chief electoral officer Bruce Chaulk on March 12 saying their scrutineer believed an “unprecedented” number of special ballots – which include mail-in ballots – were deemed spoiled, often for illegitimate reasons.
Skinner said even if Coffin doesn’t believe a recount will overturn her narrow loss in the St. John’s East-Quidi Vidi district, the recount would provide an opportunity to look at whether votes in that district were inappropriately tossed aside as the NDP feared.
According to provincial legislation, an automatic recount is triggered if there is a difference of 10 votes, but candidates can request them otherwise, Skinner said.
Elections NL’s preliminary results on Saturday showed a 48 per cent voter turnout, which Skinner said was higher than he expected.
“Though any time that there’s voter turnout under 50 per cent, it’s always concerning,” he said.
The Torngat Mountains district, which is home to fly-in Indigenous communities along the north coast, saw a 22 per cent turnout, down from about 50 per cent in the 2019 election. Both the NDP and the Progressive Conservatives wrote letters to Elections NL this month saying they were concerned voters in that district wouldn’t get ballots in by the deadline because of slow, weather-dependent mail services.
Skinner said anyone who feels like their right to vote was denied has the option of going to court, especially if they feel they’re part of a group of disenfranchised voters whose ballots may have changed the outcome in their district. He also said civil liberties organizations could take an interest and help them out with their fight.
But Skinner said the election is most vulnerable to a court challenge because it’s not clear the laws gave Bruce Chaulk the authority to move the election day in the first place.
If someone brings that issue to court, a judge could rule that only the votes cast through advance ballots before the Feb. 13 voting day was moved are valid, he said. According to estimates previously provided by Elections NL, that would leave voter turnout at 18 per cent.
“The courts might look at that and say, ‘Well, yeah, that that probably would warrant the voiding of elections where they’re challenged,”‘ Skinner said.
Ultimately, the only way the results of the election will be rendered null and void by a court is if voters or candidates successfully challenge the results of each of the 40 districts, he said.
“And that does cost a lot of time and money.”
According to the province’s Elections Act, anyone with the time, money and inclination has to launch their court challenge within the next two months, he said.