Introduction

While Canadians still vote using paper ballots in federal and provincial elections, some municipalities have started using a variety of new voting technology in their elections, predominantly in Ontario, but also in Edmonton and Saint John¹. In October’s municipal election here in Halifax we will likely be able to vote online. The implementation of new voting technology in Canada is recent and appears to be happening quite gradually. By contrast, in the United States, paper ballots are only used by a small segment of the population² and electronic voting machines “count about 87% of votes cast in America today”³.

The issues that have arisen in recent US elections⁴ have brought voting technology to the forefront. Amid some arguably conspiratorial concerns surrounding Premier Election Solutions, a subsidiary of Diebold Election Systems, Inc., which makes and sells voting machines (for example, Diebold chief executive Walden O’Dell’s status as a top fundraiser for President Bush) there are more general concerns about security, transparency, and voting irregularities associated with electronic voting methods. At the same time, proponents of electronic voting methods point out the advantages of such technology, particularly with regard to accessibility.

In a report entitled Technology and the Voting Process [PDF|HTML] prepared for Elections Canada by KPMG/Sussex Circle, the study team reached the following two conclusions with respect the new voting technologies and their potential for use in Canada:

The key point here is that none of the new technologies has yet been adequately tested in a way that would satisfy the requirements of electoral democracy in Canada.

and

The most important general finding from this study is that the new technologies-—and especially the selected three of electronic kiosk, telephone and Internet—-offer the prospect of significantly improving both the accessibility and the efficiency of the electoral process in Canada⁵.

How do we reconcile these two findings? At what point will Elections Canada deem new technologies to have been “adequately tested”? “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly”⁶, but based on the research coming out of the US from computer scientists which consistently show vulnerabilities in electronic voting methods that are currently used across that country, it will be difficult to reassure voters that their vote will be counted correctly. It is paramount that voters have confidence in the electoral process, specifically in the way their vote and the votes of others are recorded and counted.

At the same time, accessibility of the electoral process is important for gaining the satisfaction of disabled electors with the electoral system, and to potentially improving, or at least maintaining, voter turnout. As a result, we must balance the risks associated with new technologies (and the perception voters have about the security of their vote) with a desire to encourage participation in the electoral process by making voting easy and accessible to as many people as possible.

According to s. 18.1 of the Canada Elections Act, any test of electronic voting technology in a federal election will require “prior approval of the committees of the Senate and of the House of Commons that normally consider electoral matters.” What considerations should the Chief Electoral Officer and the committees make when deciding whether to test new voting technologies in an official vote? What possible constitutional challenges exist to innovation in the way Canadian electors cast their vote?

This blog will explore the Canadian constitutional issues that arise in the face of electronic voting methods, specifically electronic voting and counting machines, and online voting. Following entries providing background information on e-voting and both the rationale for voting technologies and the concerns they raise, I will explore the current situation in the United States including litigation that has arisen out of recent election controversies, the Canadian jurisprudence surrounding the right to vote guaranteed in section 3 of the Charter, and highlight the United Kingdom as a more useful comparator than the United States, as Canada balances the potential benefits and detriments of voting technologies. This analysis leads to the conclusion that based on the current status of electronic voting systems and the situation in the United States, the most reasonable course of action for Elections Canada and its provincial counterparts is to wait and see how the technology develops and how the American litigation progresses.

¹ Wikipedia. "E-Voting in Canada"
² Tokaji, Daniel P. "The Paperless Chase: Electronic Voting and Democratic Values." Fordham Law Review Vol. 57, 2005 at p. 7
³ Hacking Democracy. Dir. Simon Ardizzone and Russell Michaels. Teale-Edwards Productions, 2006.
⁴ For example, CNN.com "Scattered computer glitches slow voting." 08 November 2006; Walton, Marsha. "Electronic Voting No Magic Bullet." CNN.com 12 December 2003; and CNN.com "Florida voting official's decision next on docket." 16 November 2000.
⁵ KPMG and Sussex Circle for Elections Canada. Technology and the Voting Process. 15 June 1998. [Elections Canada Report]
⁶ Charter of Rights and Freedoms, s. 3.