Perception of the Electorate and the Integrity of the System

Political cartoons such as the one above suggest that there is a degree of unease with and lack of confidence in the integrity of the electronic voting machines being used in districts across the US.

The franchise must have confidence in the electoral system, as was emphasized by Bastarache J. in Harper v. Canada (Attorney General),¹ where he writes:

“Perception is of the utmost importance in preserving and promoting the electoral regime in Canada. Professor Aucoin emphasized that “[p]ublic perceptions are critical precisely because the legitimacy of the election regime depends upon how citizens assess the extent to which the regime advances the values of their electoral democracy.”

It is difficult to have confidence in something that is not easily understood by the average elector. Manually counting paper ballots is easy to understand, not just because it is what voters are used to but because it is a method easily performed by most people. In contrast, most people cannot read computer source code even if it were to be publicly available (and even if the system were completely fraud- and error-proof). That being said, Tokaji states:

“This does not mean that [voters] must understand the inner workings of the machine. If that were the standard, then no system ever developed would be satisfactory, since voters often do not know precisely how the system operates. […] What it does mean is that the voting system should be reasonably open to public scrutiny, so that the process through which votes are cast and counted remains accountable to the citizenry”².

From an American perspective, where voting technologies have been more common over the past number of decades, it makes sense that Tokaji would make this note. However, the current Canadian electoral system is rather uncomplicated. Presumably, most voters understand that their ballot will be hand-counted by poll workers under the supervision of scrutineers. There is no complicated machinery to understand. Coming from a system that is so easily understood by the electorate will likely mean any new system will be held to a higher standard than in the US where some districts would be moving from a system that is already not easily understood.

With their amendments to the Canada Elections Act, the current Conservative government has attempted to ensure the integrity of the electoral system through increased confidence. Justice Minister Rob Nicholson has stated, “[Electoral fraud] can erode public confidence in the democratic process, affect the results of a close election and create real harm to the integrity of our system. […] Protecting the integrity of the electoral process of course means more than just reducing the opportunity for defrauding the system. It also means improving how the system operates. A well functioning electoral system will go a long way toward reinforcing public confidence in the electoral process"³.

Public confidence in the electoral system is, in large part, what gives an elected government legitimacy. In Harper, Bastarache J. went on to state:

“If Canadians lack confidence in the electoral system, they will be discouraged from participating in a meaningful way in the electoral process. More importantly, they will lack faith in their elected representatives. Confidence in the electoral process is, therefore, a pressing and substantial objective”⁴.

The problems encountered with electronic voting as outlined above have the potential to make voters perceive that they no longer play a meaningful role in the electoral system, the very purpose of the s. 3 right to vote.

¹ Harper v. Canada (Attorney General) [2003] 3 S.C.R. 519 [Harper], para. 82.
² Tokaji, supra. at p. 68-9.
³ "Speaking notes for the Hon. Rob Nicholson", An Act to amend the Canada Elections Act and the Public Service Employment Act (C-31) – Second Reading, House of Commons, 7 November 2006.
⁴Harper, supra. at para. 103.