McGuinty Government Proposes New Amendments to Bill 231 to Soften its Ban on Network-Connected Accessible Voting Technology Like Telephone Voting and Internet Voting

April 20, 2010

SUMMARY

Late in the day on Tuesday, April 20, 2010, on the eve of the resumption of clause-by-clause debates on Bill 231 by the Standing Committee on the Legislative Assembly, the McGuinty Government proposed new amendments. These deal with the very issue on which we have been vigourously campaigning over the recent days and weeks, namely the bill’s proposed ban on network-connected accessible voting technology like telephone voting and internet voting.

Under the Elections Act, it is open to Elections Ontario to test out any new voting technology such as telephone or internet voting in a by-election. As originally proposed, however, bill 231 would forbid the use of any network-connected voting technology in a general election. We have advocated for that ban to be lifted, because measures like telephone voting and internet voting would be an economical way to make voting more accessible for many voters with disabilities.

We are still examining the new amendments, made public late today. These are complicated. There is the risk that our rushed, preliminary comments may, on further reflection, need to be refined.

With that warning in mind, here’s what we have figured out so far:

Under these proposed amendments,

1. Elections Ontario is required to study different voting technologies and to report on them to the Legislature by June, 2013, three years from now. That this report is now mandatory is helpful. Three years is considerably more time than should be needed to study this.

It would be considerably better if this end-date were moved up, or if Elections Ontario were required to prepare and submit an interim report within 18 months.

We don’t want the 2013 end-date to be used as a justification for three years of delay. We have too often had the 2025 date for full accessibility in the Accessibility for Ontarians with Disabilities Act used as an excuse for delaying actions that could be taken far sooner.

2. Starting in January, 2012 (i.e. right after the next Ontario general election), a process would exist which would allow Elections Ontario to use new accessible voting technology, including technology that is connected to a network, such as telephone voting or internet voting. It is an unusual process, that, if invoked successfully, would not require us to get the Elections Act amended by the entire Legislature.

To get this technology implemented, it would first be necessary for the Chief Electoral Officer to submit a report to the Standing Committee of the Legislature, recommending that the technology be used. The Chief Electoral Officer can only do this after he or she has tested out this technology in a by-election. On receiving that report, the Standing Committee could approve this technology after holding public hearings. If public hearings are held, that would give the disability community and others a chance at a very public platform to present their views, as our community did so effectively on March 24 and 31, 2010. After holding hearings, the Standing Committee could approve the technology that the Chief Electoral Officer recommended. After that, the Chief Electoral Officer would be permitted to use it.

This proposal is better than the world as we found it at any point since Bill 231 was proposed. If the Chief Electoral Officer recommends new voting technology, the Standing Committee can approve its use, thereby lifting the legal ban. The Standing Committee holds its proceedings in the open, unlike Cabinet. If there is a minority government, this process lets opposition parties have more of a say.

However, on our first review, there are some real difficulties with this proposal. We identify these and offer ways to address them. For example:

a) It still leaves in place a clear ban on access technology, that impedes our right to independently vote in private, and verify our choice. It would be better if that ban was removed from the legislation altogether.

b) It gives the Chief Electoral Officer an absolute veto over wither the Standing Committee can even consider this new technology. If the Chief Electoral Officer does not submit a recommendation, or if his recommendation is against this access technology, the Standing Committee has no power to override the Chief Electoral Officer’s views. The ban on that access technology remains. There are no public hearings on it. This is so even if we could prove to the Standing Committee that access technology such as telephone voting works safely, securely and reliably.

The Chief Electoral Officer, an unelected public official, should not have such one-sided conclusive power over the basic democratic rights of Ontarians including over one million voters with disabilities.

Instead, the Chief Electoral Officer should be required to submit a report and recommendations within specified time lines that would not cause undue delay, after which the Standing Committee should study it and hold hearings, even if the Chief Electoral Officer recommends against any new accessible voting technology. We should have the chance to go before the Standing Committee and discuss whether the Chief Electoral Officer was wrong, e.g. if he or she recommended against technology that is reliable.

c) Under this proposal, even if the Chief Electoral Officer submits a recommendation to adopt new voting technology, the Standing Committee does not have to hold hearings. The provision simply says that the Standing Committee cannot approve the technology without first holding public hearings. If the Chief Electoral Officer submits a recommendation, but the Standing Committee does not hold any hearings, as it would be free to do under this amendment, the proposal is lost in stasis.

It would be better if the amendment required the Standing Committee to hold public hearings, once it receives a recommendation from the Chief Electoral Officer.

d) Under this proposal, even if the Chief Electoral Officer submits a recommendation to the Standing Committee, the Standing Committee can only approve it as is, or reject it. It cannot make any changes to it, even if the public hearings show a need for a change. The Standing Committee should not be so hog-tied in its work. Once the Chief Electoral Officer has submitted a report and recommendations, it should be open to the Standing Committee to adopt it, reject it, or alter it, after holding public hearings.

e) Under this proposal, an exception to the ban on network-connected technology can only occur if “…The Chief Electoral Officer is satisfied that the alternative voting method protects the security and integrity of the election to a standard that is equal to or better than the protection afforded by section 44.1.”

We of course recognize that there is a need for any voting system to have a proper degree of security and reliability. However this amendment sets the security/integrity standard too high, in a way that is unfair to voters with disabilities.

Right now, many voters with disabilities must suffer tremendous insecurity in their voting, such as those who cannot mark their ballot independently due to vision loss or other disability. They must reveal their vote to someone else, have them mark their ballot and hope they will get it right, that they won’t spoil the ballot and that they won’t tell others for whom the voter with a disability voted. Voters without disabilities don’t have to put up with that.

Moreover, Bill 231 now allows for any voter in Ontario to vote by mail via the new “special ballot”. That means the security of their ballots is automatically and entirely entrusted to Canada Post. Special ballots could be stolen from the mail. They could be stolen from a voter’s kitchen counter by a visitor. It is unfair to require a low bar for security for all other voters who use mail-in ballots, but to impose a much higher bar before voters with disabilities can get access to technology that will let them independently and privately mark their ballot from home.

It is necessary for the security/integrity provision in this amendment to be softened.

f) These amendments do not ensure that Elections Ontario will consult with voters with disabilities on this technology as a focused effort. We would expect the Government and Elections Ontario to welcome any amendment to include a strong requirement that the Chief Electoral Officer consult with voters with disabilities, since both the Chief Electoral Officer and Liberal MPP Greg Sorbara have spoken so favourably about such consultations.

g) Under these amendments, even if the Chief Electoral Officer recommends new voting technology after studying it and trying it in a by-election, and even if the Standing Committee holds public hearings and votes to approve it, the amendments only provide that the Chief Electoral Officer afterwards “may” use that technology. It does not require that he or she do so. This leaves the Chief Electoral Officer with the power to leave in place barriers to voting that can be overcome, and that have gone through all of this scrutiny. The amendment should be changed to provide that once the Standing Committee approves the voting technology, the Chief Electoral Officer shall use it.

h) It would be worthwhile for these amendments to require that Elections Ontario undertake these reviews jointly with the Ontario Human Rights Commission, which is also an independent public agency untied to the government of the day. This is especially so where, as here, the current Chief Electoral Officer told the Standing Committee on the Legislative Assembly on March 24, 2010 that Elections Ontario is still learning about accessibility, and that it has to significantly improve in the area of accessibility. Elections Ontario would benefit from undertaking this effort in a joint enterprise with the public agency with expertise in human rights and accessibility.

i) These amendments also would benefit from some technical refinements. For example, it would help to put in language that makes it clear that any of the measures described in them override the ban, elsewhere in Bill 231, on network-connected voting technology. The new section 44.2 should simply state that it operates notwithstanding section 44.1 (the provision that bans network-connected voting technology).

We will advocate for these improvements and will keep you posted on developments as quickly as we can.

Government Motion

v. 8

Bill 231

An Act to amend the Election Act and the Election Finances Act

Motion to be moved in Committee

Section 23.1 of Bill (section 44.2 of Election Act)

I move that the Bill be amended by adding the following section:

23.1 The Act is amended by adding the following section:

Use of alternative voting method

44.2 (1) At an election, if the following conditions are satisfied, the Chief Electoral Officer may direct that an alternative voting method, which may be an electronic voting method, be used:

1. The alternative voting method has been tested by being used at a by-election under section 4.1 and a report has been made to the Speaker of the Assembly under that section.

2. The Chief Electoral Officer is satisfied that the alternative voting method protects the security and integrity of the election to a standard that is equal to or better than the protection afforded by section 44.1.

3. The Chief Electoral Officer has consulted, with registered parties, with electors and with experts on the subject of voting methods, about the alternative voting method, the test under section 4.1 and its results.

4. The Chief Electoral Officer has recommended the use of the alternative voting method at the election.

5. The Standing Committee on the Legislative Assembly or another standing or select committee of the Assembly has held public hearings into the Chief Electoral Officer’s recommendation and approved it without modification.

Direction

(2) The Chief Electoral Officer’s direction shall,

(a) describe the alternative voting method in detail;

(b) refer to the provisions of this Act that will not be complied with, and specify the nature and extent of non-compliance in each case; and

Notice

(3) The Chief Electoral Officer shall,

(b) provide copies of the direction to the leader of each registered party and to every candidate who has been nominated; and

General election

(4) At a general election, the alternative voting method shall be made available in every electoral district.

Report

(5) When an alternative voting method is used at an election in accordance with this section, the Chief Electoral Officer shall include a report on the matter,

(a) in any report that the Chief Electoral Officer makes with respect to that election; or

(b) in the next annual report made under section 114.3.

Government Motion

v. 3

Bill 231

An Act to amend the Election Act and the Election Finances Act

Motion to be moved in Committee

Section 23.2 of Bill (section 44.3 of Election Act)

I move that the Bill be amended by adding the following section:

23.2 The Act is amended by adding the following section:

Review and report re alternative voting technologies

44.3 The Chief Electoral Officer shall conduct a review of alternative voting technologies, prepare a report of the review and, on or before June 30, 2013, submit the report to the Speaker of the Assembly.

Government Motion

v. 3

Bill 231

An Act to amend the Election Act and the Election Finances Act

Motion to be moved in Committee

(On peut obtenir la version française de cette motion auprès du greffier.)

Section 40 of Bill

I move that section 40 of the Bill be struck out and the following substituted:

Commencement

40. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.

Same

(2) Subsections 3 (2) and 23 (2) and sections 25 and 28 come into force on July 1, 2011.

Same

(3) Section 23.1 comes into force on January 1, 2012.