Election Legislation Enforcement - Elections in Canada Electoral Insight Enforcement of the Canada Elections Act Raymond Landry Commissioner of Canada Elections The contemporary electoral

ELECTORAL www.elections.caELECTORAL

Electronic Voting MethodsA Profile of Ellen Louks FaircloughElectronic Voting MethodsA Profile of Ellen Louks Fairclough

VOL. 5 • NO. 1 • MARCH 2003

Election LegislationEnforcementElection LegislationEnforcement

Contents VOL. 5 • NO. 1 • MARCH 2003

1 Chief Electoral Officer’s Message

2 Election Legislation Enforcement

2 Enforcement of the Canada Elections ActRaymond LandryAn overview of compliance and enforcement mechanisms at thefederal level in Canada

7 Comparative Review of Penalties for Electoral Offences in CanadaMarc Chénier and Alain PelletierAn analysis of various penalty schemes in Canadian jurisdictions

12 Election Law Enforcement: International ComparisonsSue NelsonAn examination of enforcement regimes in selected countries around the world

18 Campaign Finance Enforcement in the United StatesRhonda J. Vosdingh and Lawrence L. Calvert Jr.A report on the enforcement process administered by theFederal Election Commission

26 Electronic Voting Methods: Experiments and LessonsDaniel Guérin and Asifa AkbarA review of recent developments in electronic registration and voting in several countries including Canada, the United Kingdom, Australia and the United States

31 Ellen Louks Fairclough: Canada’s First Female FederalCabinet MinisterWayne Brown Her five successive election victories were unmatched by any other womanduring her time and she introduced historic legislation giving Status Indiansthe right to vote

36 Electoral News in Brief

Elections Canada is the non-partisanagency responsible for the conduct offederal elections and referendums

Electoral Insight is published by ElectionsCanada three times a year. ElectoralInsight is intended for those interested inelectoral and related matters, includingparliamentarians, officials of internationaland domestic electoral managementbodies, election officers and academics.The opinions expressed are those of theauthors; they do not necessarily reflectthose of the Chief Electoral Officerof Canada.

Submissions of articles and photos thatmight be of interest to Electoral Insightreaders are welcome, although publicationcannot be guaranteed. If used, submissionswill be edited for length and clarity asnecessary.

Please address all contributions and lettersto Wayne Brown, Managing Editor,Electoral Insight, Elections Canada,257 Slater St., Ottawa, CanadaK1A 0M6 ([email protected]).

Eleanor Milne, Chris Fairbrother andMarcel JoanisseThe Vote (1979–1980)Indiana limestone, 121.9 x 182.8 cm, House of Commons, Ottawa

The base stone of The Vote, a sculptureon the east wall of the House of Commonschamber, shows four heads with flowinghair whose mouths shape, in song, thefirst syllables of Canada’s nationalanthem, “O-Ca-na-da”.

Co-editorsOxana Sawka and F. Leslie Seidle

Publications ManagerFrancine Dalphond

Managing EditorWayne Brown

For more information, contactElections Canada:Telephone: 1 800 463-6868

www.elections.ca

© ELECTIONS CANADA 2003ISSN 1488-3538EC 91826

ALL RIGHTS RESERVEDPRINTED IN CANADA

The method of enforcing election legislation is one of many elements that serveto strengthen democratic processes. Different systems have been developed based onparticular values and cultures, and the circumstances existing at the time of theiradoption. Their common and essential goal is to maintain public trust in theintegrity of the process.

In Canada, while I am responsible for the administration of federal elections,the Commissioner of Canada Elections is responsible for the enforcement andprosecution of all offences under the Canada Elections Act. The Commissioner isselected and appointed by the Chief Electoral Officer under section 509 of the Act.More information about his role and the multi-faceted approach used to ensureenforcement of the Act is contained in Raymond Landry’s article in this issue.

The new Canada Elections Act adopted in 2000 contained some changes that reflected the views of many, includ-ing myself, who had recommended decriminalizing certain offences under the Canada Elections Act. Nevertheless, itis important to ensure that the consequences for non-conformity remain relevant to ensure deterrence and serveto educate the public, and that the processes of enforcement remain shielded from political manipulation.

This issue of Electoral Insight surveys enforcement schemes adopted to effect compliance with electoral law invarious jurisdictions. Criminal prosecution of offenders, imposition of civil fines and less stringent measures such asthe conclusion of compliance agreements are among the provisions used. As will be seen from the various articlesin this issue, a range of administrative and judicial bodies are responsible for applying these rules.

Every democracy is a social laboratory where processes are tested in real-life situations, and every nation mustcontinue to strive to determine what works best to ensure the effective enforcement of its election law. In sodoing, the experience of others can be instructive and contribute to the process of adaptation to changingcircumstances.

As always, comments about this issue are welcome, along with suggestions for future articles.

Jean-Pierre Kingsley

March 2003 1

Election Legislation Enforcement

Jean-Pierre KingsleyChief Electoral Officer of Canada

Chief Electoral Officer’s Message

2 Electoral Insight

Enforcement of theCanada Elections Act

Raymond Landry Commissioner of Canada Elections

The contemporary electoral process in Canada is character-ized by a number of checks and balances that dramaticallyreduce the likelihood of widespread abuses, and by meansfor enforcement that act as a deterrent. At the federallevel, the Commissioner of Canada Elections, an impartialand independent official appointed by the Chief ElectoralOfficer, has the duty to ensure that the Act is compliedwith and enforced.

This article presents an overview of the role and responsi-bilities of the Commissioner of Canada Elections in thefederal election law enforcement scheme, and describesthe multi-faceted approach used to enforce the Act.

Role and responsibilities of the Office of theCommissioner of Canada Elections

The adoption of the Election Expenses Act in 1974 led tothe creation of the Office of the Commissioner of ElectionExpenses, with statutory powers over the application of theextensive new financial provisions of the Canada ElectionsAct.1 In 1977, the Commissioner was assigned responsibilityfor enforcement of all provisions of the Act, and the holderof the office was renamed the Commissioner of CanadaElections.2

The Commissioner of Canada Elections is an impartialofficial selected and appointed by the Chief ElectoralOfficer (who is appointed by a resolution of the Houseof Commons and reports directly to Parliament). Indeciding on the proper course of action to deal with acomplaint of an alleged infraction, the Commissioner isthus independent from politicians, political parties andthe government.

Section 509 of the Canada Elections Act provides that theduty of the Commissioner of Canada Elections is to ensurethat the Act is complied with and enforced.3 In carrying outhis responsibilities, the Commissioner investigates possiblebreaches of the provisions of the Act and decides on theappropriate course of action to remedy the infraction.

Prior to the adoption of a new Canada Elections Act in 2000,the only enforcement tool, aside from automatic administra-tive consequences for some acts or omissions, was prosecutionbefore a court of justice. The Commissioner of CanadaElections had and still has exclusive responsibility for allprosecutions under the Canada Elections Act and prosecutionsfor electoral offences under s. 126 of the Criminal Code.However, the Canada Elections Act adopted in 2000 enhancedthe compliance role of the Commissioner by providing himwith two new tools: compliance agreements and injunctions,about which further details are provided below.

Until 1993, the Royal Canadian Mounted Police, at theCommissioner’s request, carried out investigations ofalleged offences under the Act. A major change occurredin 1993 when a national network of special investigatorswas set up by the Commissioner to carry out investigationsin the field, on his behalf and at his request. Currently,26 special investigators are retained across the country.They carry out their investigations in accordance with theprocedures and policies in the Special Investigator’s Manual.This manual is published on-line to make public the rulesunder which investigations are performed, bringing fairnessand consistency to the process.4

In addition, the Commissioner is assisted in the performanceof his duties by legal counsel and chief investigators. When


a decision to initiate a prosecution hasbeen reached by the Commissionerbased on his review of the evidenceuncovered during an investigation, alawyer in private practice, whose inde-pendence from political activities hasbeen determined, is retained in theapplicable region of the country tocarry out the prosecution.

The setting up of a network of specialinvestigators as a substitute to request-ing investigations by the RCMP, andthe use of lawyers in private practiceto carry out the prosecution insteadof relying on Crown attorneys, aretwo elements that have enhancedthe independence of the Office of theCommissioner of Canada Elections.These measures further remove anypossible political interference in thedischarge of his duties.

Finally, it is worth mentioning thatthe Commissioner of Canada Electionsnormally defends the constitutionalityof the offence provisions of the CanadaElections Act where a prosecution onhis behalf is filed in court, and defencecounsel initiates a constitutional chal-lenge of those provisions. Notice ofconstitutional questions must still beserved, however, on the AttorneyGeneral of Canada and the attorneygeneral of each province.

Enforcement of the CanadaElections Act: A multi-facetedapproach

The enforcement scheme under theAct is multi-pronged, ranging from theapplication of administrative incen-tives, to the initiation of criminalprosecution. Although prosecutionremains the ultimate enforcementtool, the Canada Elections Act adoptedin 2000 gave the Commissioner twonew tools to effect compliance: first,

the power to enter into complianceagreements; and, second, the ability toseek an injunction during an electionperiod. These new tools can act asmuch to prevent breaches of the Actas to stop those breaches after the fact.

The mere act of intervening in anelection period, whether to seek aninjunction or to enter into a compli-ance agreement in the hopes ofavoiding a breach of the Act or thecommission of an offence, has itselfthe potential of causing political con-troversy. Resources may be divertedfrom a campaign and reputationscalled into question. In the considera-tion of the exercise of his powers, theCommissioner must therefore be care-ful not to allow the complaint processto become a political tactic.

A closer look at each of the elementsof the enforcement scheme is providedbelow.

Administrative incentivesThe Act contains a number of pro-visions that provide for automaticstatutory consequences to some acts oromissions. These incentives (or disin-centives) exist to encourage politicalparties and candidates to act in con-formity with their legal responsibilities.It is important to note that the ChiefElectoral Officer is responsible for theadministration of these measures,which include:• the statutory loss of a candidate’s

nomination deposit where thereporting requirements are not metafter the election (s. 468)

• the loss of the second instalment ofa candidate’s reimbursement of elec-tion expenses where the reportingrequirements are not met (s. 465)

• the suspension of a registered politi-cal party that failed to provide itsannual fiscal report (ss. 386 and 387)

The existence of these statutorymeasures may have an impact onthe course of action chosen by theCommissioner to deal with a complaint.In essence, the Commissioner’s respon-sibility is to choose the most appropriatetool at his disposal to deal effectivelywith a case of non-compliance.

The power to seek an injunctionSection 516 provides the Commissionerwith the authority to apply to a courtfor an injunction ordering any personnamed in the application to refrainfrom committing any act that is pro-hibited, or to do any act that is requiredby the legislation. These new measureshave been specially tailored to theelectoral process.

The Commissioner cannot himselfissue an injunction. He is authorizedonly to apply to a court for such anorder. Further, he can do so only dur-ing the election period, which can beas short as 36 days from the issue ofthe writ to election day.

Before the Commissioner can applyfor an injunction, and before a courtcan grant that request, there must bereasonable grounds to believe that aperson has committed, is about tocommit or is likely to commit an actor omission that is contrary to theAct. Accordingly, while neither theCommissioner nor the court need besatisfied beyond a reasonable doubt ofthe breach or potential breach, neithercan act on mere speculation or whim.There must be sufficient objectiveevidence to indicate that a breachhas been or will likely be committed.

Before an injunction can be issued,it must be justifiable in light of threebasic considerations:• the nature and seriousness of the

breach

March 2003 3

4 Electoral Insight

• the need to ensure the fairness ofthe electoral process

• the public interest

These factors must all be consideredand balanced in light of the particularcircumstances.

The short period during which aninjunction can be sought, namely theelection period, imposes some very reallimitations on the practical exercise ofthe power. Complainants are thereforeencouraged to provide all relevant andverifiable information available, assoon as possible. Any delay in provid-ing such information can adverselyaffect the likelihood or ability of theCommissioner to seek an injunctionwithin the statutory deadlines.

Since the adoption of this new measure,the required elements to justify theseeking of an injunction have notbeen found to exist in any occurrence.

The power to enter intocompliance agreementsAnother tool provided to theCommissioner in the 2000 legislationis the authority to enter into a compli-ance agreement, found in section 517of the Act.

A compliance agreement is a formalagreement between the Commissionerof Canada Elections and another personknown as a contracting party. It iscompletely voluntary and containsterms and conditions that are mutuallyacceptable to ensure compliance withthe Act. The Commissioner may enterinto such an agreement with any personwho he has reasonable grounds tobelieve has committed, is about to com-mit or is likely to commit an offence.

As long as the contracting party actsin conformity with the terms and

conditions of theagreement, noprosecution canbe instituted orcontinued againstthat person for theact or omissionconstituting theoffence. Anacknowledgementof responsibilityin a complianceagreement, unlikea guilty plea in acourt of justice,does not result ina criminal record.

To further the public interest, compli-ance agreements can be used to preventthe probable commission of offences,thereby avoiding harm before it hap-pens. Moreover, it also provides analternative mechanism for resolving acomplaint where there is no overridingpublic interest to be served by a prose-cution, or where prosecution may havebeen possible but not justifiable in thepublic interest. Finally, a complianceagreement, as an alternative to judicialintervention, serves to lighten thecourt system’s caseload.

In order to maintain transparency,notice of all compliance agreementsentered into must be published. Forthis reason, a person who enters intoa compliance agreement with theCommissioner must consent to itspublication. Since the adoption of thisnew power, the Commissioner hassigned compliance agreements withmore than 50 individuals and groupsto resolve cases of offences under theCanada Elections Act. A public noticefor each of these agreements appears inthe Canada Gazette and can be viewedon the Elections Canada Web site atwww.elections.ca.

The ultimate enforcement tool:the initiation of a prosecutionAlthough compliance agreements andthe authority to apply for an injunctionprovide the Commissioner with greaterflexibility to enforce the Act, thereremain instances where prosecution iswarranted. By virtue of section 511,this avenue of redress is still open tothe Commissioner where he believeson reasonable grounds that an offenceunder the Act has been committedand is justified by the public interest.

Considerations that may come intoplay during an assessment of the publicinterest include the necessity ofmaintaining public confidence in thefairness and effectiveness of the elec-toral system, the need for generaldeterrence, and the need for decisiveaction where the offence is of consid-erable public concern. Other factorsmay include the suitability of alterna-tive modes of enforcement and thepresence of significant mitigating oraggravating circumstances.

The Commissioner’s written consentis required before a prosecution for anoffence under the Canada Elections Act

Supreme Court of Canada

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can be initiated, pursuant to sec-tion 512. In determining that reason-able grounds exist to believe that anoffence has been committed, theCommissioner satisfies himself thatthere is reliable, admissible and suffi-cient evidence to prove that an offencewas committed by a person or groupand that there is a reasonable pros-pect of conviction; as with all otherprosecutions under a penal statute,proof means proof beyond a reasonabledoubt.

Under section 510 of the Act, theChief Electoral Officer can direct theCommissioner, in specific circumstances,to make any inquiry that appears tobe required. This can occur when hebelieves on reasonable grounds that anelection officer may have committedan offence against the Act or that anyperson has committed an offence underthe provisions listed in that section.However, the power to initiatethe prosecution remains with theCommissioner.

OffencesSince the electoral reform of 2000,there is normally no longer a need torely on section 126 of the CriminalCode to prosecute for an act or omis-sion contrary to the Canada ElectionsAct. The Act includes a completecode for the conduct of federal elec-tions: there are some 175 distinctoffences in Part 19 covering acts oromissions committed by candidates,electors, voters, registered parties,third parties, employers, officialagents and election officers.

The Act also sets out the level of intentthat a person must have in order to befound guilty of a particular offence.Some offences are strict liability offenceswhere the fact of the occurrence issufficient for conviction, unless aperson acted with due diligence. Otheroffences require a mens rea of having“knowingly” committed the prohibitedact. This essentially means that theperson was aware of what he or shewas doing but did not necessarilydesire the prohibited result of those

actions. Finally,some offencesrequire a level ofintent whereby theperson commits theoffence “wilfully,”which essentiallymeans that the

person acted intentionally to achievethe prohibited result.

SentencingThe Act provides for specific ranges ofpenalties for every offence that includefines and prison terms. Penalties areproportional to the gravity of theoffence, and to the degree of intentrequired for the offence to occur. Thecourts have also been given greaterflexibility in imposing alternative pun-ishments in section 501, including:• a fine of up to five times the amount

by which a third party exceeded thelimit on election advertising expenses

• community service• compensation for damages• specific performance of the obliga-

tion which gave rise to the offence(e.g. submit return)

• any other reasonable measure(e.g. charitable donation)

Finally, in section 502, a number ofoffences are listed as being either illegalor corrupt practices. These includeserious wrongdoings that affect the

integrity of the election process. Uponconviction for these listed offences,automatic consequences that applyfor the next five years for an illegalpractice, and for seven years for acorrupt practice, are:• loss of entitlement to be a candidate,

or to sit in the House of Commons• loss of entitlement to hold office in

the nomination of the Crown or ofthe Governor in Council

Loss of right to vote is no longer apunishment for having being convictedof an illegal or corrupt practice, as wasthe case before 2000.

A sentencing digest listing all individ-uals found guilty of an offence underthe Canada Elections Act is maintainedon Elections Canada’s Web site.

Conclusion

I have been Commissioner of CanadaElections for a period of more than10 years. Since 1992, I have acted inthat capacity for one national referen-dum, three general elections, and37 by-elections.

Some movement towards decriminaliza-tion during my time as Commissioneris consistent with my general observa-tion during the course of my work thatCanadians by and large want to actin accordance with their statutoryresponsibilities. Once informed thatthey are in violation of these obliga-tions, most immediately react tocorrect their behaviour to ensuretheir conformity with the law.

Criminal prosecution and sanctionsmust necessarily continue to be appliedto serious wrongdoings that put theintegrity of the electoral process injeopardy. However, where there is nooverriding public interest to be served

March 2003 5

The Act provides for specific ranges ofpenalties for every offence that includefines and prison terms.

by a prosecution, every effort must bemade to promote alternative means ofachieving compliance with the CanadaElections Act.

It is important to recall that the mosteffective element that ensures thesmooth and harmonious unfoldingof an electoral event and of relatedpolitical processes remains the com-mitment of all stakeholders to abide,in good faith, by the rules prescribedin legislation. Indeed, the integrity ofthe electoral process can only be main-tained where parties, candidates, thirdparties and electors have trust in thesystem and where they act in accord-ance with their obligations underthe law.

6 Electoral Insight

1. Reporting of election expenses bycandidates had been required since 1874(Dominion Elections Act, S.C. 1874, c. 9),but the law did not include any meansfor enforcement.

2. Previous holders of the Office havebeen John P. Dewis (1974-1976), JosephGorman (1976-1987), and George M.Allen (1988-1991). The use of themasculine gender in this article isintentional as all commissioners todate have been male.

3. Although section 38 of the ReferendumAct provides the Commissioner with asimilar role with respect to that Act, thepresent article will deal solely with theCommissioner’s responsibilities pursuantto the Canada Elections Act, S.C. 2000,c. 9.

4. An on-line copy of the manual can befound on the Elections Canada Web site,in the Electoral Law and Policy pages,together with all other public notices andinformation relating to the Office of theCommissioner of Canada Elections.

NOTES

7

Comparative Reviewof Penalties for ElectoralOffences in Canada

Marc Chénier Legal Counsel to the Commissioner of Canada Elections

Alain Pelletier Assistant Director, National and International Research and Policy Development, Elections Canada

March 2003


Broad similarities can be detected in processes adopted ineach Canadian jurisdiction to ensure the fair, transparentand accessible election of members to their respectivelegislative assemblies.1 These similarities in the provisionsadopted by the federal Parliament and the provincial/territorial legislatures have led to specific acts or omissionsbeing identified in most jurisdictions as constitutingoffences under their specific electoral laws.2 Despite thesesimilarities in processes and in the offences created toensure their lawful enforcement, Cécile Boucher stated in1991, as part of her work for the Royal Commission onElectoral Reform and Party Financing, that “there are noreal similarities in penalties for election offences in variousjurisdictions.”3

As this article demonstrates, more than a decade later,this lack of uniformity in the penalty schemes in federal,provincial and territorial electoral legislation is still evi-dent. Specifically, we will review the availability of finesand imprisonment as punishments used by the courts insentencing individuals convicted of offences under thevarious electoral laws. We will also discuss the availabilityof additional penalties, some of them being automaticconsequences upon conviction – namely of an offenceidentified in the particular legislation as being either anillegal or a corrupt practice; others being imposed at thediscretion of the court upon sentencing. Finally, in ourconclusion, we will note the trend evidenced over the pastdecade towards the decriminalization of statutory offences

and its effect on the range of remedial measures availableto rectify a contravention of electoral law.

To begin, a few observations may be helpful. First, it isimportant to note that electoral law covers a broad rangeof processes that include the actual voting process itself,but also: election financing; the registration of politicalparties; the nomination of candidates; the regulation ofactivities of partisan groups during election campaigns;and political broadcasting and advertising. Offences haveevolved to cover each of these different areas of electorallaw, and as a general rule, the ranges provided for the variouspunishments available depend on the level of intent requiredfor the commission of the offence (implying various levels of“blameworthiness”), and on the severity of the consequencesof the act or omission on the integrity of the electoral process.

Second, under the Constitution, the federal Parliamenthas sole authority to legislate to define criminal acts.4

Prosecutions for such offences are necessarily by way ofindictment. Although the provinces cannot create criminalacts, they are entitled to create offences that are requiredfor the effective enforcement of a statute that they haveadopted in the exercise of their constitutional powersaccording to their fields of competency. Where such astatutory offence is created either by a province or by thefederal government, it is not considered a criminal act, andthe proceedings are by way of summary conviction. Thisentails a less demanding procedure than by indictment.5

As a general rule of thumb, rangesof penalties made available duringsentencing are generally higher foroffences that are categorized as crimi-nal acts than for those that are merelystatutory offences.

Fines

All jurisdictions in Canada provide forthe imposition of fines as an option forpunishment upon conviction for anoffence under their election legislation.

The requirement to impose at least aminimal fine upon conviction is pro-vided for only in New Brunswick andQuebec. In these jurisdictions, whensentencing individuals convicted ofsome particular offence, judges arerequired to impose at least a certainspecified amount in fines. As anexample, anyone in New Brunswickwho is found guilty of having disclosedat a polling station the name of thecandidate for whom they voted isautomatically liable to a fine of at least$70.6 These minimal fines limit to acertain extent judiciary discretion withrespect to sentencing.

With respect to maximum amounts, inthe federal scheme, the harsher rangeof fines is reserved for convictions onindictment for offences requiring intent.In these cases, fines of not more than$5 000 can be imposed. While theoption of proceeding by indictment isavailable at the federal level only forcriminal acts, some provinces havenevertheless provided for harsher finesfor similar statutory offences that arenecessarily prosecuted on summaryconviction.

Accordingly, while the $5 000 maxi-mum upon conviction on an indictmentis applicable in cases of intimidationof voters at the federal level, the

maximum fine is twice that, at $10 000,for the corresponding offence committedduring a Manitoba provincial election,where the prosecution must necessarilyproceed by summary conviction.7

Conversely, where the Commissionerof Canada Elections – the federal pros-ecutor of electoral offences – choosesto proceed by summary conviction ona charge of intimidation, the maxi-mum fine applicable is $2 000.8 Thisrepresents one fifth of the maximumpenalty provided for in Manitoba forthe equivalent offence also prosecutedby way of summary proceedings. This isone example of higher maximum finesbeing consistently applied to alloffences in the Manitoba statute.9

In some jurisdictions, where the optionof imprisonment is not available for aspecific offence, the maximum range ofthe fine that can be imposed by a courtis significantly more than the usualfines provided for inthat statute. In theCanada ElectionsAct, for example,where only a fine ismade available tothe sentencingjudge, the maximumfine that can beimposed jumps to $25 000.10 Offenceswhere this particular maximum fineapplies include: wilfully failing toprovide election survey information;wilfully transmitting survey resultsduring the blackout period; and, beinga broadcaster, wilfully failing to makebroadcasting time available pursuantto the Act’s requirements.11

The same occurrence is observablein the Northwest Territories and inNunavut, where broadcasting offencesare punishable only by a fine. This fineis increased five times, to $5 000, fromthe usual maximum fine of $1 000

provided by law for all other offenceswhere imprisonment is also availableas an option. In Quebec, where noprison terms are available as a sentenc-ing option, maximum fines tend tobe generally higher than in otherCanadian jurisdictions.

Imprisonment

It is arguable that imprisonment isthe ultimate punishment available tothe courts under Canadian electorallaw, since it entails serious conse-quences that deprive an individual ofhis or her rights to liberty and free-dom. However, it is not a sentencingoption available to Quebec judgesfor any offence committed under thatprovince’s election law,12 and inNew Brunswick, a prison term canbe imposed only as a punishment foroffences under the election financingprovisions.13 Minimum terms of

imprisonment are no longer used inCanadian electoral law, although asrecently as 1991, Saskatchewan stillimposed a minimum term of sevendays in prison for some offencescommitted under its Elections Act.14

Despite the availability of this formof punishment for most offencesidentified in the Canada ElectionsAct, since the office of theCommissioner of Canada Electionswas created in 1974 the courts havenot imposed a term of imprisonmenton anyone convicted of an offenceunder that Act.

8 Electoral Insight

All jurisdictions in Canada provide forthe imposition of fines as an option forpunishment upon conviction for an offenceunder their election legislation.

March 2003 9

As the only Canadian jurisdictionwith the constitutional power tocreate offences representing criminalacts, offences in the federal legislationcan, where so indicated, be prose-cuted either by way of summaryconviction or by indictment.Accordingly, the maximum periodof imprisonment that can be imposedfor an offence prosecuted by way ofindictment under that Act is, at fiveyears, the longest period of imprison-ment provided for in all of thejurisdictions.

Nova Scotia and Prince EdwardIsland have the highest provincial/territorial maximums for their prisonterms, at two years for all offenceswhere a prison term is available asa sentencing option. Conversely,Newfoundland and Labrador andOntario are the only provinces thatexclusively provide for maximumprison terms that are less than oneyear, when a term of imprisonment isincluded as a sentencing option for anoffence committed under their elec-toral legislation. Maximums inNewfoundland and Labrador rangefrom periods of imprisonment of nomore than three months, to a maxi-mum of no more than six months foroffences related to the voting processor election signs. In Ontario, impris-onment is used as a sentencing optionvery sparingly, with a maximum termof six months for some offencesrelated to the ballot and some relatedto election officers.

Yukon’s approach is to impose theidentical maximums in terms of finesand imprisonment for every offenceunder its electoral legislation. Alloffences are therefore punishable bya fine of no more than $5 000, and/orimprisonment for no more thanone year.15

Special consequences uponconviction for illegal orcorrupt practices

Aside from British Columbia, Yukon,Manitoba and Newfoundland andLabrador, all other Canadian jurisdic-tions have identified specific offencesunder their electoral legislation thatthey consider to be either illegal orcorrupt practices. In addition to theother punishments provided for theseoffences (i.e. fines and prison terms),the legislator has added specialautomatic consequences in terms ofineligibilities that apply for a specifiedperiod of time.

In the federal context, all illegalpractices involve offences committedby either a candidate for election or

an official agent, and the automaticineligibilities that result from theconviction are in effect for a periodof five years following the conviction.Offences identified as constitutingcorrupt practices mostly involveactions or omissions by candidates ortheir official agents, except for threedistinct situations: where anyone isconvicted of signing a nominationpaper when ineligible; performs aforbidden act with a list of electors; orapplies for a ballot under a false name.In the case of a corrupt practice at thefederal level, the ineligibilities thatautomatically apply are in effect for aperiod of seven years from the day ofthe conviction.16

The longest periods of ineligibility arefound in Ontario and Alberta, where

Additional penalties for corrupt or illegal practice

Canada � � �

Newfoundlandand Labrador

Prince Edward Island � � � �

Nova Scotia � � �

New Brunswick � � � �

Quebec � � �

Ontario � � �

Manitoba

Saskatchewan � � �

Alberta � � � �

British Columbia

Northwest Territories � � � �

Yukon

Nunavut � � � �

(Adapted from: Compendium of Election Administration in Canada: A Comparative Overview, 2002 Edition;Table H.2 General Offences and Penalties)

To benominated

ascandidate

To beelected asmember

To sit as a

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Jurisdiction

INELIGIBILITIES:

they are in effect in the case of Ontariountil the eighth anniversary of thedate of the official return,17 and inAlberta, for the eight years followingthe date on which the Chief ElectoralOfficer receives the report of the courtstating that the candidate was foundguilty of a corrupt practice.18 Theperiod of ineligibility following aconviction for an offence listed as anillegal practice in the NorthwestTerritories and Nunavut is for fiveyears, and for a corrupt practice, sevenyears from the date of the conviction.All other jurisdictions that have iden-tified offences as being either illegalor corrupt practices have specialautomatic consequences that applyfor a period of five years.

In addition to the additional conse-quences noted in the above table,New Brunswick, Saskatchewan andAlberta prohibit anyone convicted ofa corrupt or illegal practice of beingentered on a list of electors or of beingregistered as an elector for the periodof the ineligibility. Further, Quebecprohibits such a person from engagingin partisan work during the five yearsfollowing the date of the judgment.19

Additional penalties

Further to the automatic consequencesupon conviction that apply to offencesidentified as illegal or corrupt practices,a few jurisdictions have adopted addi-tional penalties that may be imposedat the court’s discretion.

Among these, two jurisdictions allowthe sentencing judge to impose a typeof “surcharge” in addition to any otherfine or term of imprisonment, inspecific circumstances. The CanadaElections Act provides that, in additionto any other punishments that may beimposed under the Act, a third party

that spent in excess of the limit onadvertising expenses to which it wassubject is liable to a fine of up tofive times the amount by which itexceeded the limit.20 A third party isan individual or group, other than acandidate, a registered party or a localassociation of a registered party, thatspends money on election advertisingduring an election period. A type of“surcharge” is alsoavailable in Manitobaas a sentencing option,where any person con-victed of an offencerelated to bribery orinducement is liable toa further fine equal todouble the amount orvalue of the benefitinvolved.21 The adop-tion of this sentencingoption may be recognition that moneyspent (or overspent) in a mannercontrary to the provisions of electionlegislation can have especially nega-tive consequences on the integrity ofthe electoral process.

Moreover, other forms of additionalpunishments are provided for at thefederal level in section 501 of theCanada Elections Act. They includethe performance of community service,compensation to persons who mayhave suffered damages as a result of thecommission of the offence, specificperformance of any obligation, or theimposition of any other measure thecourt considers appropriate to ensurecompliance with the Act. No otherjurisdiction provides for comparablepunishments or remedial measures.

Conclusion

This article has reviewed the possiblepunishments that can be imposed bythe criminal courts upon conviction

of an individual for an offence underelectoral law.

Some move towards decriminalizationof regulatory offences in Canada hasalso been evidenced, to a certain degree,in election law. This has tended toincrease the diversity of remedialand punitive measures available forenforcement. At the federal level, for

example, a review of the noticesof agreements published by theCommissioner of Canada Electionsin cases where compliance agreementswere entered into for cases of noncon-formity, indicates that, on a voluntarybasis, some offenders have made acharitable donation or performedcommunity service.22

Another example of alternative meansof dealing with nonconformity can befound in New Brunswick, where pay-ment of a sum equal to $50 for eachday an individual is late in filing afinancial return can remedy whatwould otherwise be an offence.23 Thisrepresents a rare case in Canadianelectoral law where civil fines existas an enforcement tool, and otherjurisdictions may one day decide tocontemplate such a regime in theinterest of further decriminalization.

It is apparent that the various juris-dictions in Canada continue tohave diverging penalty schemes for

10 Electoral Insight

Further to the automatic consequencesupon conviction that apply to offencesidentified as illegal or corrupt practices,a few jurisdictions have adoptedadditional penalties that may beimposed at the court’s discretion.

March 2003 11

punishment of individuals who commitoffences under their respective electionacts. In a federal system, this is notnecessarily surprising. Indeed, acertain degree of diversity can beinstructive as jurisdictions learnfrom each other about what worksbest to ensure compliance withelectoral law.

1. At the federal level, only members of theHouse of Commons are elected. ThePrime Minister appoints senators to thesecond chamber of Parliament, the Senate.

2. This is not to say that the rules are identi-cal. For instance, while the sale of alcoholcontinues to be prohibited on election dayin Prince Edward Island, Saskatchewanand all three territories, there is no longersuch a prohibition at the national level orin the other provinces.

3. C. Boucher, “Administration andEnforcement of Electoral Legislation inCanada” in M. Cassidy, ed., DemocraticRights and Electoral Reform in Canada,Volume 10 of the Research Studies, RoyalCommission on Electoral Reform andParty Financing, Dundurn Press, Toronto,1991, p. 479.

4. Constitution Act, 1867, s. 91.

5. Where a dual procedure is provided for(i.e. the statute provides that the prosecu-tion can be by way of summary convictionor by indictment), the prosecutor has thediscretion to choose to proceed by eitherway. The offence is considered to havebeen a criminal act only where the deci-sion is made to proceed by indictment.

6. Elections Act, R.S.N.B. 1973, c. E-3,s. 109; and Provincial Offences ProcedureAct, S.N.B. 1987, c. P-22.1, s. 56(3).

7. The Elections Act, R.S.M. 1987, c. E30,s. 164.

8. Canada Elections Act, S.C. 2000, c. 9,s. 500(5).

9. Compendium of Election Administration inCanada: A Comparative Overview, 2002Edition, available at www.elections.ca.


11. For a complete list of offences where themaximum fine of $25 000 can be imposedupon conviction, please see s. 495(4) ofthe Canada Elections Act.

12. Election Act, R.S.Q., c. E-3.3.

13. Political Process Financing Act, S.N.B. 1978,c. P-9.3.

14. The Election Act, 1996, S.S. 1996,c. E-6.01, s. 191.

15. Compendium of Election Administration inCanada.

16. A complete list of offences constitutingillegal or corrupt practices in the federalregime can be found in section 502 of theCanada Elections Act, S.C. 2000, c. 9.

17. Election Act, R.S.O. 1990, c. E.6, s. 98(1).

18. Election Act, R.S.A. 2000, c. E-1, s. 173(2).

19. Compendium of Election Administration inCanada: A Comparative Overview, 2002Edition.


21. The Elections Act, R.S.M. 1987, c. E30,s. 145(4).

22. Notices of compliance agreements canbe viewed by clicking “ComplianceAgreements” on the Electoral Law andPolicy menu of the Elections Canada Website (www.elections.ca).

23. Political Process Financing Act, S.N.B. 1978,c. P-9.3, s. 88(2).

NOTES


Election Law EnforcementInternational Comparisons

Sue Nelson Electoral Consultant*


Enforcement of election laws and regulations is an essentialelement of free, fair and reliable elections, no matter wherethey are held. Good enforcement not only ensures that thelegal and regulatory framework for elections is applied andrespected, but also reassures voters of the legitimacy of theelectoral process. It also encourages accountability, acts as adeterrent, increases transparency and builds confidence inthe election results.

Most enforcement systems for democratic elections haveevolved over time and are a reflection of the political andsocial context within each country. Their institutionalframeworks, jurisdictions and procedures differ, as does thequality of enforcement. However, despite differing charac-teristics and mechanisms, most democratic electoral systemshave a similar basic enforcement regime: monitoring theprocess, identifying and investigating offences, prosecutingthose believed to be responsible, determining guilt andsentencing those responsible.

Part of the enforcement regime is usually a system of checksand balances to ensure the integrity and effectiveness ofelection law enforcement. Different institutions, or officeswithin an institution, are used as a means to limit the powerof other institutions and to serve as a check that the lawsare being appropriately enforced. One of the most prevalentmechanisms used in election law enforcement is the sepa-ration of powers among the agencies that investigate,prosecute and adjudicate offences. Another widely usedsafeguard is the availability of an appeal process as a checkon enforcement decisions.

The examples in this overview, taken from a range of coun-tries, illustrate the different types of enforcement systems andmethods used. Some systems are based on an independentelection commission, while others use the state administra-tive system. In others, independent commissions enforcecertain aspects of the election laws, such as campaignfinancing or anti-corruption rules.

Enforcement responsibility

In many electoral systems, an electoral management body(EMB) administers elections. In these systems, the EMBoften acts as the primary enforcement agency, takingcomplaints and initiating investigations. For example, inthe Philippines, the Commission on Elections (COMELEC)is constitutionally responsible for the preliminary investiga-tion and prosecution of cases involving election offences.It was first established in 1941 as an independent nationalelections commission to administer elections, and its rolein enforcement has expanded over the years. In 1963, itwas strengthened by legislation to “carry out its constitu-tional duty to ensure free, clean and orderly elections andadminister and enforce all laws relative to the conduct ofelections.”1 Its enforcement powers were further expandedby the 1973 Constitution that added judicial power, makingCOMELEC a judicial tribunal as well as an electionadministration body.

The approach of expanding the role of an independentelection commission to include electoral law enforcementhas been adopted by other countries, especially those witha troubled electoral past or history of election fraud. Thisis seen as a way to improve accountability and break anentrenched party’s hold on the process, as demonstratedin Mexico.

*Sue Nelson was the lead writer of “Election Integrity” forthe Administration and Cost of Elections (ACE) Project(www.aceproject.org).

March 2003 13

In the early 1990s, Mexico completelyreformed its electoral system andadopted an extensive system of checksand balances. The 1990 FederalCode of Electoral Institutions andProcedures (COFIPE) gave the elec-toral management body (the FederalElectoral Institute or IFE) and theFederal Electoral Tribunal sharedresponsibility for election law enforce-ment. The IFE has authority to enforceadministrative rulings and sentenceelectoral authorities, political parties,citizens and other public and privateentities that violate the election law.However, decisions by IFE can beappealed to the Tribunal, whichhandles the majority of offences. Thefocus of the Tribunal is on juridicalaspects such as violations of political-electoral rights and actions of federalelectoral authorities that violateconstitutional or other legislation.

Mexico has a federal political system,and each state has its own electionlaws that cover the organization ofelections and the prosecution ofrelated offences. As IFE is a federalinstitution, it enforces federal law.However, its agreements with thestates to provide electoral instruments,such as voter lists and voter cards,make many locally committed electionoffences eligible for federal prosecution.

Thailand also recently reformed itselectoral system and gave enforce-ment powers to its EMB. The 1997Constitution established an ElectionCommission of Thailand (ECT) toorganize elections and investigate andadjudicate cases of electoral fraud.Some of the powers given to the ECTinclude the right to enter premises andto search and seize documents, assets,and evidence without a court warrant,provided there is compelling evidenceof a violation of election law.2

In some other electoral systems, agovernment agency or ministryadministers elections. Their electionlaw enforcement regimes usually followthe same rules that apply to offencesnot related to elections. In Moldova,for example, a state Central ElectionsCommission organizes and conductselections. Its permanent staff is supple-mented by seconded governmentworkers during elections and prepara-tions for elections. The Commissionhas the power to investigate abuses ofthe electoral system, including allega-tions of fraud. Administrative offences,which include voter fraud, are docu-mented by local officials (mayors,chairpersons of the relevant electoralbody or police supervising electoraloperations) and are submitted to acourt for processing. If criminal actionis involved, the state prosecution bodies

are informed and the case is thenpursued by the prosecutors.3

Adjudicating election disputes

Election law enforcement requires amechanism for voters, candidates andothers to challenge suspect parts ofthe process and to have their com-plaints investigated and resolved.Many electoral disputes are based onallegations of fraud or election lawviolations. Each system has developedits own way of handling electiondisputes and processing any illegalaction found during the resolutionof those disputes.

The agency responsible for formalelectoral dispute resolution varies fromone jurisdiction to another. As

indicated in the previous table, thiscan be the responsibility of the EMB,the judiciary, the electoral tribunal orother mechanisms.

In the Bahamas, a temporary electoralcourt is created to handle electionpetitions. This civil court issues aCertificate of Judgement that eitherupholds or voids an election. At thesame time, the court will issue areport to the Attorney General ifcorrupt or illegal practices wereinvolved, including the nature of theoffence and the identity of the personsinvolved. The Attorney General thendecides whether to start a criminalprosecution.8

A similar system is used in WesternSamoa, where the Supreme Courthears all election petitions. At theend of the trial, the court issues aCertificate of Court on the result ofthe election, as well as a Report of theCourt on corrupt or illegal practices.The report includes the names of thoseinvolved and is given to the AttorneyGeneral for prosecution.9

Investigations

Essential to the enforcement processare the investigation of complaints andthe determination of whether an illegalaction has taken place. Agenciesresponsible for investigations can varywidely among the different enforcementregimes. In some countries, such asNew Zealand, the police investigateelection offences. In other countries,the EMB has this responsibility.

In the Philippines, COMELEC hasthe exclusive power to conduct thepreliminary investigation of allelection offences punishable under theelection act. The Law Departmentwithin COMELEC often starts the

preliminary investigation based on acomplaint or a COMELEC initiative.It may delegate investigations toregional election directors or provincialelection supervisors. The investigatingofficers have subpoena powers and canhold hearings to clarify issues. Once aninvestigation is concluded, the investi-gating officer determines whetherthere are sufficient grounds to hold arespondent for trial. If so, the case isthen turned over to governmentprosecutors.

In Bangladesh, an Electoral EnquiryCommittee is established by theElection Commission. The Committeeincludes judicial officers and its mandateis to investigate problems and preventpre-poll irregularities. It investigatescomplaints made directly to theCommittee or through the ElectionCommission. The Committee can alsouse its own initiative to investigateany act or omission that it believesobstructs the preparation and conductof a free and fair election. Bangladeshalso has election tribunals that areconstituted by the Election Commissionand headed by judicial officers at thedivisional levels, but the sole functionof the tribunals is to try election peti-tions arising out of election disputes.10

In Hong Kong, a separate IndependentCommission against Corruption (ICAC)was established with law enforcementpowers that include enforcing theElections (Corrupt and Illegal Conduct)Ordinance. Its enforcement strategyincludes investigation and prevention.As it found that it could not win thebattle against corruption unless it wasable to change the people’s attitudestowards corruption, it also carries outpublic education activities. For electionoffences, the ICAC receives, considersand investigates complaints of electioncorruption. It has the power to arrest,

search and seize property and detain asuspect. Cases that reveal misconductor malpractice by a civil servant arereferred to government departmentsfor disciplinary or administrativeaction. Cases of criminal violations aregiven to the Secretary for Justice forprosecution.11

Types of offence

Most election laws include detailedsections on election offences andpenalties. Despite variations in con-tent and the wording used to describethe offence, the basic list of offences issimilar. The differences are found morein the penalties than in what consti-tutes an electoral offence.

Several countries, such as the Bahamasand Western Samoa, differentiatebetween “illegal practices” and“corrupt practices.” Illegal practicesin the Bahamas are tried before amagistrate and carry smaller penaltiesthan corrupt practices. Corrupt prac-tices are tried before the SupremeCourt and carry stiffer penalties.Prosecution for a corrupt practicealso requires the consent of theAttorney General.

In New Zealand, a corrupt practice isa serious offence against the electoralprocess, resulting in a fine and/orimprisonment. Anyone who wilfullycontravenes the provisions of theelection and related laws, is consideredto have committed an illegal act.The names of persons who commit acorrupt practice are put on a CorruptPractice List for three years. Personson the list, compiled by each registrarof electors, are not permitted toregister to vote.12

In Mexico, offences against theelection law are characterized as


March 2003 15

“administrative faults” and areenforced by IFE. However, criminalacts fall under the federal penal codein a section entitled “Electoral Lawsand the National Registry of Citizens.”This was done to ensure that criminaloffences are prosecuted by federaljudicial authorities. Only about5 percent of electoral offences areadministrative faults handled by IFE.13

What constitutes a campaign financelaw violation and its penalty varieswidely. The Brazilian Electoral Court

has the power to verify the financialreports provided by political parties,but only as an administrative reviewto see if their statements meet generalaccounting practices. There are nolegal sanctions for non-compliance.14

However, in other countries, there arepenalties for non-compliance. InThailand, for example, the ElectionCommission can seize cash and prop-erty of those who violate campaignfinance laws. In New Zealand, theElectoral Commission reports offencesto the police.

In the United States, enforcementdifferentiates between deliberate orlarge financial violations and mistakesmade out of ignorance. Mistakes are

handled administratively by theFederal Election Commission, whilepurposeful violations are prosecutedas crimes by the Justice Department(see “Campaign Finance Enforcementin the United States” in this issue).In the United Kingdom, an inde-pendent Election Commission wascreated in 2000 as part of campaignfinance reforms. Until that time,the United Kingdom did not havean agency for campaign financeregulation enforcement at thenational level.15

Prosecution

Many systems use the governmentprosecution system to prosecute crimi-nal acts related to elections. Some ofthese countries include Armenia, theBahamas, Burkina Faso, Mali, NewZealand and South Korea.

In Thailand, it was found that thecriminal prosecution system was tooslow and ineffectual to deter vote-buying and election fraud. The 1997electoral reforms gave the ECT thepower to adjudicate cases of electoralfraud. If evidence of fraud is found, theECT can declare an election null andvoid and order a by-election. It canalso revoke the election rights of a

candidate. Once someone’s electionrights are revoked, that person issubject to prosecution under thecriminal procedure code.

In Mexico, a Special Prosecutor forElectoral Offences was created in 1994by presidential decree. The SpecialProsecutor is a member of theAttorney General’s office, but has tech-nical autonomy to address electoraloffences. In the Philippines, a state,provincial or city prosecutor decideswhether to prosecute a case. However,COMELEC has the power to reviewand reverse the resolution of a prosecu-tor. Criminal cases are tried in trialcourts and appeals are processedthrough the criminal justice system.Private prosecutors are allowed in casesinvolving the recovery of civil liability.

There is a different system in Bulgaria,where the Central Election Committeeand constituency election committeesinvestigate violations and draw up astatement of findings. Penalty state-ments are then issued by the regionalgovernments where the violationoccurred. If a penalty instrument isissued against a regional governor,the penalty statement is done by theMinister of Public Administration.19

Penalties

Penalties for election law violationsand for election-related crimes varywidely from country to country.Much of the variation depends onthe particular context in each countryand the perception of what constitutesa serious threat to its electoral process.

In Mexico, penalties for administrativefaults are established according to whocommitted the fault. The differentfault categories are voters, electoralofficials, party officials, public servants

Country Agency

Canada

France

Mexico

Nepal

New Zealand

Thailand

United Kingdom

United States

Commissioner of Canada Elections

National Commission16

IFE General Council

Election Commission

Electoral Commission

Election Commission

Election Commission17

Federal Election Commission18

and religious ministers. For example,sanctions for a citizen found guilty ofa vote violation range from a 10 to a100 wage-day20 fine and/or six monthsto three years in prison. Religiousministers who try to influence votersreceive up to a 500 wage-day fine.Electoral officials who alter electoralinstruments or documents or who refuseto perform their electoral duties receivea 20 to 100 wage-day fine or from threemonths up to five years in prison.

In other countries, penalties are dividedaccording to whether the offence was acorrupt act or an illegal practice. In theBahamas, illegal practices receive a fineup to $1 000 and/or up to three monthsin jail. Corrupt acts receive a fine of upto $2 000 and/or up to two years in jail.

Other countries add additional penaltiesfor crimes committed under specialcircumstances. For example, in Mali,the election law adds forced labour tothe punishment for crimes that areviolent or violate the secrecy of the

vote. In Western Samoa, thoseconvicted must also pay all of thecourt costs. And many systems willrevoke voter and candidate rights,depending on the violation.

Conclusion

Despite the various enforcement systems,the similarities among election enforce-ment regimes in democratic systems arestriking. They have the same funda-mental objectives and, in large measure,identify the same basic acts as offences.They also face the same problems ofproviding neutral, timely and effectiveenforcement within an often highlycharged and politicized environment.The differences reflect the differentpolitical institutions and history of eachcountry and what they perceive as themost direct threats to the holding offree and fair elections. This focus onhistorical and potential threats is reflectedin the choice of institutions, the amountof power given to each institution andthe severity of the sanctions.

Enforcement systems form part ofeach jurisdiction’s legal and regulatoryframework. However, unless anenforcement system is respected andappropriately used, its value is ques-tionable. Widespread impunity forlawbreakers or the use of enforcementfor partisan purposes erodes publictrust and can cloud the legitimacy ofthe election outcome.

Enforcement regimes also reflect thenorms and values of their citizens, andthe international trend since the early1990s has been towards free and fairelections. As citizens and politicalparticipants demand greater account-ability and reliable elections,enforcement regimes are updated,reformed or strengthened. Ensuringthere are functioning checks andbalances is a significant part of thatprocess. Another is building publictrust and confidence in the enforce-ment system, so that it can fulfill itsobjective of protecting the integrityof the electoral process.


REFERENCES

March 2003 17

Arya, Gothom. “Election System and Events inThailand.” www.ect.go.th/english/commissions/gothom/go7.html

Algeria. “Electoral Law, Chapter V. Penalties.”http://membres.lycos.fr/lexalgeria/elect.htm

Armenia. “Electoral Code of the Republic ofArmenia.” www.ifes.am/laws/electoral_code.htm

Bahamas. “Bahamas: Parliamentary ElectionsAct, 1992, Part VII: Election Petitions andInquiries into Qualifications.” www.georgetown.edu/pdba/Electoral/Bahamas/bahamas.html

Bangladesh. Bangladesh Election CommissionSecretariat. “Electoral System, Code of conduct,prevention of pre-poll irregularities and electionpetitions.” www.bangladeshgov.org/ecs/

Bulgaria. “Election of Members of ParliamentAct, Promulgated State Gazette No.37/13.04.2001.” www.essex.ac.uk/elections

Bulgaria. “Presidential Elections Act.”www.essex.ac.uk/elections

Burkina Faso. Independent National ElectionsCommission. “Election Law, Chapter VIII:Penalties.” www.ceni.bf

Donsanto, Craig C., “Campaign Finance Lawsin the U.S.” 1999. www.psephisma.org:8080/site/index.xsp

Hong Kong. Independent Commission againstCorruption. www.icac.org.hk

Mali. “Election Law, Chapter XII: Penalties,Ministère de l’Administration Territoriale et desCollectivités Locales.” http://w3.matcl.gov.ml/ministere/serv-cent.html

Mexico. Federal Electoral Institute.www.ife.org.mx/wwwcai/pef2000i.htm

Mexico. Electoral Tribunal. www.trife.gob.mx

Moldova. “Electoral Code.” www.ifes.md/elections/electoralcode/

Nepal. Election Commission. “ElectionCrimes.” www.election-commission.org.np/6.html

New Zealand. Election Commission ofNew Zealand. www.elections.org.nz

Philippines. “Omnibus Election Code of thePhilippines, Article XXII: Election Offenses.”www.comelec.gov.ph/laws/oec.html

Pinto-Duschinsky, Michael and AlexanderPostrikov. “Campaign Finance in ForeignCountries: Legal Regulation and PoliticalPractices.” 1999. www.psephisma.org:8080/site/index.xsp

Ricay, Agustin. “Electoral Offences (Mexico).”Paper for the Third Annual TrilateralConference on Electoral Systems. Washington,DC. 1996. (Published by InternationalFoundation for Election Systems).

Thailand. “Organic law on the Election ofmembers of the House of Representativesand Senate.” www.ect.go.th/english/laws/organiclawelection.html

United Kingdom. Electoral Commission of theUnited Kingdom. Fact sheet, “CampaignExpenditure 2002.” www.electoralcommission.org.uk/about-us/factsheetspub.cfm

Western Samoa. “Electoral Act 1963.”www.samoalive.com/electoral_act_1963.htm

1. “Republic Act No. 3808,” Philippines. www.comelec.gov.ph

2. Information from the ElectionCommission of Thailand.www.ect.go.th/english

3. “Electoral Code,” Chapter 12.www.ifes.md/elections/electoralcode/

4. Data for Latin American countriesprovided by Daniel Zovatto. Data forCanada: www.elections.ca. Data for U.S.:www.fec.gov/index.html. Data for othercountries from their electoral laws.

5. The Commissioner of Canada Elections isappointed by the Chief Electoral Officer.

6. EPIC Project. www.epicproject.org

7. Court system is also used. U.S. data fromwww.fec.gov/index.html

8. “Bahamas: Parliamentary Elections Act,1992, Part VII: Election Petitions andInquiries into Qualifications.” www.georgetown.edu/pdba/Electoral/Bahamas/bahamas.html

9. “Electoral Act 1963,” Part I.www.samoalive.com/electoral_act_1963.htm

10. “Electoral System, Code of conduct,prevention of pre-poll irregularities andelection petitions.” www.bangladeshgov.org/ecs/

11. Independent Commission againstCorruption. www.icac.org.hk

12. Electoral Glossary, Electoral Commissionof New Zealand. www.elections.org.nz/elections/pandr/eglossary.html

13. Carlos Navarro, Federal Electoral Institute,Mexico City.

14. Torquato, Jardim, “Equality ofOpportunities Essential.” IFES Today,Vol. 8, No. 3, 9/99, p. 9.

15. Pinto-Duschinsky, Michael and AlexanderPostrikov. “Campaign Finance in ForeignCountries: Legal Regulations and PoliticalPractices.” 1999. www.psephisma.org.8080/site/index.xsp

16. Ibid. Full title is the National Commissionfor Election Campaign Reports andPolitical Finance.

17. Electoral Commission of theUnited Kingdom. Fact sheet,“Campaign Expenditure 2002.” www.electoralcommission.co.org/about-us/factsheetspub.cfm

18. For federal campaign finance laws.

19. “Presidential Elections Act.” Bulgaria.www.essex.ac.uk/elections

20. A wage-day fine is the minimum wage orsalary per day established by law. Mexicohas three different wage zones but theminimum wage average is about fourU.S. dollars per day.

21. Penalty data taken from the respectiveelection laws.

NOTES

Arroget annus. scriptor abhincannos centum qui decidit, interperfectos veteresque referridebet an inter vilis atque novos.


Campaign Finance Enforcementin the United States

Rhonda J. Vosdingh Associate General Counsel for Enforcement, U.S. Federal Election Commission

Lawrence L. Calvert Jr.Attorney, Enforcement Section, Office of General Counsel,U.S. Federal Election Commission


Introduction

There are more than 50 campaign finance enforcementschemes in the United States, or roughly the same as thenumber of campaign finance laws. U.S. federal law generallygoverns only the financing of campaigns for election to theoffices of President and Vice President of the United States,United States Senator, and United States Representative.1

Each U.S. state has its own system of campaign finance law,with a corresponding enforcement scheme. And some ofthe larger U.S. cities, such as New York and Los Angeles,have enacted their own ordinances regulating the financingof municipal election campaigns and have created localagencies to administer and enforce those ordinances.

At the federal level, responsibility for campaign financeenforcement is again divided. Violations of the campaignfinance laws that are aggravated both in intent and amountmay be prosecuted as crimes by the U.S. Department ofJustice (DOJ). Offenders found guilty of campaign financecrimes may be imprisoned, fined or both. All violations ofthe campaign finance laws, whether of aggravated or lesserintent and regardless of the amount of money involved,may be settled or prosecuted in civil court by the FederalElection Commission (FEC or “the Commission”).

The FEC is the independent agency of the United StatesGovernment vested with the exclusive authority to“administer, seek to obtain compliance with, and formulate

policy with respect to” the three laws at the centre ofthe federal scheme of campaign finance regulation. Thoselaws are:• The Federal Election Campaign Act of 1971, as amended

(FECA or “the Act”).2 FECA sets forth the basic limitsand prohibitions regarding who may contribute to whomand how much. It also requires periodic disclosure ofreceipts and disbursements by candidates, political partycommittees, and other participants.

• The Presidential Primary Matching Payment Act.3 This lawprovides partial public funding to the campaigns of can-didates in the presidential primaries who agree to limittheir spending.

• The Presidential Election Campaign Fund Act.4 This lawprovides public funding to the general election cam-paigns of candidates for President and Vice Presidentwho agree not to accept private contributions and tospend no more than the federally provided amount.It also provides public funds for the national partynominating conventions.

This article addresses U.S. campaign finance enforcementsolely at the federal level. Its main focus is on the civilenforcement process administered by the FEC. That processis the only process applicable to the vast majority of cam-paign finance cases; it also has some features that are uniqueor very unusual in American administrative law. Beforeturning to civil enforcement, however, we look briefly atcriminal enforcement.

March 2003 19

Criminal enforcement

The Department of Justice has hadauthority to prosecute criminal viola-tions of the federal campaign financestatutes since the first such statute wasenacted in 1907. But before the creationof the Commission in 1974, very fewprosecutions were brought. This waslargely due to substantive deficienciesthat made FECA’s predecessor, theFederal Corrupt Practices Act of 1925,extremely easy to evade. However, itwas also due to an unwillingness toexpend limited prosecutorial resourceson what some considered “minor” or“technical” violations. While the viola-tions may have been “minor” comparedto other types of crime, failure to pros-ecute them contributed to widespreadflouting of the Federal CorruptPractices Act.

Thus, in 1974 Congress created theFEC as an agency with power to enforcecompliance with the Federal ElectionCampaign Act and the Presidential pub-lic financing statutes in the civil courts.

Violations of U.S. federal campaignfinance laws can be crimes only if theyare committed with “knowing andwilful” intent. This is a very highstandard; it means, in essence, thatdefendants can be found guilty only ifthey knew their conduct was unlawfuland engaged in it anyway. Moreover,even “knowing and wilful” violationsmay be prosecuted as crimes only if theamount of money involved exceeds acertain threshold, which in most casesis US$2 000. Additionally, as in anycriminal case, the prosecution mustprove “knowing and wilful” intent, aswell as the acts constituting the crime,beyond a reasonable doubt.

Until recently, criminal violations ofthe FECA could be directly prosecuted

only as misdemeanours.5 However, themost aggravated FECA violations –generally those where the amountin violation aggregates more thanUS$25 000 in a calendar year, orUS$10 000 for cases involving

reimbursed contributions through“straw donors” – are now feloniesunder amendments to FECA containedin the Bipartisan Campaign Reform Actof 2002 (BCRA, popularly knownas “McCain-Feingold” or “Shays-Meehan”).6 Moreover, the statute oflimitations for criminal prosecution ofFECA violations has been extended tofive years, from the previous three.7

The FEC and itsenforcement process

The Federal Election Commission hassix members. They are appointed bythe President to serve staggered, six-yearterms. No more than three of thecommissioners may be of the samepolitical party. Among the Commission’score functions are encouraging voluntarycompliance with the federal campaignfinance laws, investigating potentialviolations of those laws, attempting tosettle or “conciliate” violations wherethey are found, and, where cases

cannot be settled, prosecuting viola-tions by filing civil lawsuits in U.S.District Court.

The Commission takes its mission ofencouraging voluntary compliancevery seriously. Its Public InformationDivision conducts an aggressive pro-gram of educational outreach to theregulated community through amonthly newsletter, the publicationof “Campaign Guides” and otherresources about the law, periodic train-ing conferences, and the Commission’sWeb site (www.fec.gov). Moreover,the Commission’s Reports AnalysisDivision (RAD) examines the reportsof receipts and disbursements thatpolitical committees file with theCommission; the most minor technicalreporting violations are usually disposedof by a letter from RAD to the reportingcommittee noting the problem, andthe committee’s subsequent filing of anamended report. However, voluntary

compliance does not always work.Where it does not, the Commission’sinvestigative and law enforcementmissions begin.

Matters under review (MURs)The Commission’s enforcement func-tions are carried out primarily throughenforcement cases, called MattersUnder Review (MURs). The Actand regulations contain detailedenforcement procedures that requireapproval by the votes of four of the sixcommissioners at each stage (to initiate

Ellen L. Weintraub, Chair, U.S. FederalElection Commission

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an investigation, approve a subpoena,find probable cause to believe a violationhas been committed, settle a matter, orauthorize suit). This means that, onoccasion, the Commission will take noaction in an enforcement matter becauseit lacks four votes for any particularposition. However, the four-vote require-ment and the partisan balance of theCommission combine to ensure thatevery action taken by the Commissionhas at least some bipartisan support.Congress deliberately designed the sys-tem in this manner so that no majorityparty could use the Commission topersecute its political adversaries in theminority. If the Commission finds itselfunable to act due to a lack of four votesfor a particular position, it will usuallythen vote unanimously to dismiss thecase on those grounds.

Initiation of a compliance actionMURs may be initiated in two ways.Most are initiated by complaints, whichmay be filed by any person who believesa violation has occurred. Complaintsmust be signed and sworn to by theperson making the complaint; the Actprohibits the Commission from actingon anonymous complaints. They mustalso allege violations within theCommission’s relatively limited juris-diction; for example, the Commissionhas no power to act on an alleged vio-lation of the Voting Rights Act, which iswholly within DOJ’s jurisdiction.

MURs can also be initiated by theCommission itself based upon informa-tion ascertained in the normal course ofcarrying out its responsibilities, such asthrough RAD’s regular review of reportsor through an audit of a political com-mittee; the receipt of a referral fromanother government agency; or throughthe receipt of a sua sponte submissionfrom a respondent (i.e. one in which arespondent reports its own violation).

Rights of respondentsRespondents receive notification of theCommission’s actions at various stagesin the enforcement process. They alsohave opportunities at various stages torespond in writing to the allegationsraised and to the Commission’s actionsduring its investigation. However,respondents have no opportunity for anoral hearing before the Commission.

Respondents have a right to be repre-sented by counsel, if they choose, at allstages of a matter. Moreover, until thetermination of the MUR, the Actrequires that the entire investigationremain confidential, unless therespondent files an express waiver.8

Case intake and enforcementpriority systemIf a proper complaint within theCommission’s jurisdiction is filed, a fileis opened and assigned a MUR number.Copies of the complaint are sent to therespondents and, once responses arereceived, an initial determination ismade as to whether the case appearsto be significant enough to warrantuse of Commission resources. TheCommission calls this triage processthe Enforcement Priority System, orEPS. EPS can be viewed as a funnel.If purely voluntary compliance and(in the reporting context) prompt andcomplete responses to RAD inquiriesare at the top of the funnel, EPS furtherwinnows the enforcement agenda sothat staff focus only on the most seriousand significant cases. Among the factorsexamined in EPS are the presence ofknowing and wilful intent, the impactof alleged violations on elections, theamount of money involved, and whethercertain areas of the law require specialattention. Cases that appear to warrantuse of Commission resources are assignedto staff, as staff becomes available to workon them. Cases that do not warrant use

of Commission resources may be closedwithout investigation, pursuant to theCommission’s prosecutorial discretion.Although staff is responsible for theevaluation of a case under the EPS,the evaluation is subject to review bythe Commission, and all decisions toclose cases must be approved by theCommission.

The “reason to believe” stageIn matters that are activated, the com-plaint, the respondent’s response, andthe staff analysis and recommendationsare submitted to the Commission foran initial determination as to whetherthere is reason to believe or no reasonto believe a violation has occurred.In internally generated matters, theCommission considers its internalrecords and the staff analysis andrecommendations when making thisdetermination. “Reason to believe”is a relatively low threshold, and thestatutory term has been criticizedas misleading; at this stage, theCommission is simply decidingwhether there is reason to investigate.

If the Commission finds reason tobelieve, an investigation is initiated.If the Commission does not find reasonto believe, the matter is closed. TheCommission may also find reason tobelieve, but exercise prosecutorial dis-cretion to take no further action andclose the file.

If the Commission finds reason tobelieve, the respondent will receive alegal and factual analysis showing thebasis for the Commission’s finding. Atthis point, unless the Commission hasdetermined to take no further actionand close the file, all respondents –including respondents in internally gen-erated matters, who have received nonotification of the matter prior to thispoint – have an opportunity to respond.

March 2003 21

Investigation and pre-probable-cause conciliationThe Act provides a full range ofinvestigative powers to enable theCommission to secure sufficient infor-mation and evidence to resolve thecase. The investigation may be con-ducted through informal contacts orthrough formal issuance of subpoenasand orders for production of docu-ments, depositions or answers tointerrogatories.

The Commission’s regulations providea means to settle matters early if therespondent states in writing a willing-ness to conciliate a violation prior to afinding of probable cause. Upon receiptof this request, staff will prepare a con-ciliation agreement for Commissionapproval if the General Counsel’sinvestigation is complete. In an effortto streamline the process, in certaintypes of cases, the Commission maysend a proposed pre-probable-causeconciliation agreement to a respondentalong with the reason-to-believe notice.

Probable cause to believe If a matter is not resolved in pre-probable-cause conciliation, the GeneralCounsel prepares a brief stating hisposition on whether the facts of thecase and the applicable law indicateprobable cause to believe a violationhas been committed. Although theCommission has not formally articu-lated a definition of “probable cause tobelieve,” for most Commissioners, inmost cases, it seems to mean “morelikely than not” – the same standardthe Commission would have to meet incourt if it ultimately sued a respondent.The General Counsel simultaneouslyprovides the respondent and theCommission with a copy of the brief.The respondent has 15 days afterreceipt of the brief in which to submita response brief. The Commission then

considers both briefs before voting onprobable cause.

In the event the Commission findsprobable cause and decides to pursuethe matter, it must attempt toconciliate the violation for at least30 days, but not more than 90 days.If it has unsuccessfully attempted pre-probable-cause conciliation, it mustnevertheless try again after a findingof probable cause.

A conciliation agreement usually pro-vides for payment of a civil penalty bythe respondent. The Commission mayconsider various factors in determiningthe amount of the civil penalty.

The agreement also contains a state-ment of facts, and, in virtually allcases, an admission of violation and anagreement to cease and desist from fur-ther violations of the provision of lawat issue. It may also require correctiveaction, such as the refund or giving upof illegally received contributions; theamendment of a committee’s disclosurereports; or the attendance of the com-mittee’s treasurer at an FEC trainingconference.

If the Commission finds that a violationwas knowing and wilful, it may seek acivil penalty of up to twice the amountit otherwise could.9 The Commissionmay, of course, settle or civilly prosecuteknowing and wilful violations itself. Itmay also refer such violations to DOJfor criminal prosecution, but not untilit has found probable cause to believe.If the Commission refers a matter toDOJ, the Commission may retain juris-diction over that matter until DOJ hascompleted its process with regard tothe case.

Post-probable-cause action If the Commission is unable to correcta violation through a conciliationagreement, it may authorize the filingof a civil action for relief in U.S. DistrictCourt by an affirmative vote of at leastfour members. The District Courtreviews the facts of the matter de novo.

Two aspects of this procedure arehighly unusual compared to most otherU.S. administrative law enforcementschemes. First, most other U.S. admin-istrative agencies have the power todirectly fine persons who violate thelaw or to order them to cease and

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desist from further violations. In theusual scheme, after an investigation, analleged lawbreaker is administrativelyprosecuted by agency staff before anindependent administrative law judge,who takes testimony and renders aninitial decision; the presidentialappointees at the head of an agencyserve an appellate function. The bur-den of contesting the agency’s finalfindings and orders is on the respondent,who must usually appeal the finalagency action to a U.S. Circuit Courtof Appeals. Those courts, in turn,review the agency actions under themore deferential standards applied byappellate courts.

In contrast, there are no administrativelaw judges at the Commission. Withthe limited exception of a pilot pro-gram for handling routine reportingviolations, the Commission has nopower to do anything to a respondent,other than to sue. Rather than servingan appellate function, the Commissionperforms a function somewhat akin toa civil grand jury’s. The burden ofgoing forward in court is on theCommission, not the respondent.

The second unusual aspect of this pro-cedure is that the General Counsel’sOffice, not the Department of Justice,represents the Commission in enforce-ment litigation (and in defensivelitigation, as well). Congress providedfor the Commission to conduct most ofits own litigation in order to ensure

that civil enforcement actions underthe Act would be brought independ-ently of political considerations.

In contrast to criminal FECA prosecu-tions, where the government mustprove beyond a reasonable doubt thatthe defendants knowingly and wilfullyviolated the law, FEC enforcementsuits are subject to the same “prepon-derance of the evidence” burden ofproof as any civil suit in the UnitedStates. This burden is considerablylower than “beyond a reasonabledoubt.” Moreover, the FEC may bringa civil enforcement suit even if thedefendant did not have knowing and

wilful intent. Violationsof FECA’s limitations andprohibitions on thesources and amounts ofcontributions are subjectto civil sanction if com-mitted with knowingintent. This means thatthe defendants intendedto do the act that violatedthe law, whether or not

they knew it was illegal. Violators ofFECA’s requirements for disclosure ofpolitical committees’ receipts and dis-bursements are subject to civil sanctionunder a “strict liability” standard. Thismeans that the FEC need prove onlythat the violation occurred, and neednot prove intent.

Termination of enforcement mattersCompliance matters are terminated inone of three ways. First, they may beterminated if the Commission closesthe file after finding no violation or tak-ing no further action. A Commissiondetermination in the context of anenforcement matter involves theexercise of prosecutorial discretion.Therefore, the Commission can decidenot to pursue a particular violation dueto mitigating circumstances. Factors the

Commission may consider in decidingto take no further action include theamount of money involved, the timingof the violation, actions taken to correctthe violation, the timing of those actions,and whether the matter involves anambiguous area of the law or a provisionthat has not been previously interpretedby the Commission.

Second, a compliance matter isterminated (at least with respect toa particular respondent) when theCommission enters into a conciliationagreement with the respondent.Finally, a compliance matter is termi-nated after a failure to get four votesfor any action necessary to continuethe matter.

Between 1996 and mid-2002, about56 percent of matters activated andassigned to staff were resolved throughconciliation agreements; some of thesematters settled relatively rapidly, butothers settled only after extensiveinvestigations. Roughly 39 percentwere closed either after a substantivefinding of no violation, an exercise ofprosecutorial discretion to take nofurther action, or a failure to obtain4 votes. Only about 5 percent of mattersactivated and assigned to staff weresubjected to the entire enforcementprocess through the authorization ofa civil law enforcement suit.

Complainant’s challenges toagency handling of complaints If the Commission does not take finalaction on a complaint within 120 daysafter it was filed, the complainant mayseek judicial review in the U.S. DistrictCourt for the District of Columbia. Thecomplainant will have to show that theCommission’s failure to complete actionwas contrary to law or arbitrary andcapricious. In deciding such claims, thecourt takes into consideration the nature


Congress provided for the Commissionto conduct most of its own litigation inorder to ensure that civil enforcementactions under the Act would be broughtindependently of political considerations.

March 2003 23

and complexity of the enforcement mat-ter and the action the Commission hastaken, as well as other factors such asthe Commission’s workload and itshuman and budgetary resources. If thecourt agrees that the manner in whichthe Commission is proceeding is notarbitrary and capricious, it may dismissthe suit, or it may require periodicreports from the Commission about anyaction the Commission is taking.

In defending these cases, theCommission frequently provides thecourt and complainant/plaintiffs withconfidential chronologies of the actionstaken in the enforcement matter up tothat point. These cases frequently settlewith an agreement to provide the courtand complainant with periodic updates.

Moreover, in a provision that may beunique in American administrativelaw, complainants may seek judicialreview of a Commission decision notto pursue a matter. If the Commissiondismisses a complaint, the complainantmay file a petition to review that dis-missal. However, the petition must befiled in the U.S. District Court for theDistrict of Columbia, no matter wherethe complainant is located. The peti-tion must be filed within 60 days afterthe Commission dismisses the com-plaint. As with suits for delay, thecomplainant/plaintiff bears the burdenof proving that the Commission’s failureto act was arbitrary and capricious orcontrary to law.

If the court rules that the Commissionacted in an arbitrary and capriciousmanner, it may order the Commission totake some other action within 30 days.If the Commission does not conformto the court’s directive, the court mayauthorize the complainant to file his orher own suit against the respondent toremedy the alleged violation of the law.

Alternative enforcementprocesses

Administrative fines programA larger number of political committeesthan one might expect either failaltogether to file the required reportsdisclosing their receipts and disburse-ments, or fail to file them on time.Many of these violations do not resultfrom malfeasance, but are instead com-mitted by smaller committees staffed byless experienced personnel. The onlyfactual issue in the cases is usuallywhether the report was or was not filedon time. Nevertheless, prior to 2000the FEC had no way to deal with thesecases other than the procedure-ladenprocess just described.

Amendments to the FECA, first enactedby Congress in 1999 and since renewed,permit the FEC to directly impose civilmoney penalties, based on publishedschedules of penalties, for late filing andnon-filing of disclosure reports, if theviolation occurs between January 1, 2000,and December 31, 2003. Beginning withthe July 15, 2000, quarterly reports, theCommission began a new program toassess these penalties.

Under the new program, if theCommission finds reason to believethat a committee failed to file a reportat all or on time, it notifies the com-mittee in writing of the factual andlegal basis of its finding and the amountof the proposed civil money penalty.The committee has 40 days from thedate of the reason-to-believe findingeither to pay the civil money penaltyor submit to the Commission a writtenresponse, with supporting documen-tation outlining the reasons why itbelieves the Commission’s findingand/or penalty is in error.

If the committee submits a response,the response is forwarded to an impar-tial reviewing officer – someoneemployed by the FEC who was notinvolved in the original reason-to-believe finding. After reviewing theCommission’s finding and the commit-tee’s written response, the reviewingofficer forwards a recommendation tothe Commission. Respondents havean opportunity to submit a writtenresponse to the reviewing officer’srecommendation. The Commissionthen makes a final determination asto whether the committee violated

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the Act. If the Commission finds aviolation occurred, it assesses the civilmoney penalty.

After a final determination by theCommission, the committee has30 days to pay the penalty or seek judi-cial review in a U.S. district court in

the area where the committee residedor conducted business. If a respond-ent fails to pay the civil penalty, theCommission may either sue the respond-ent directly to collect the penalty ortransfer the case to the U.S. Departmentof the Treasury for collection.

Alternative dispute resolutionIn 2000, the Commission initiated anAlternative Dispute Resolution (ADR)pilot project to resolve certain enforce-ment matters. It recently made theproject permanent.

The objectives and goals of the ADRprogram are to promote compliance,expand the tools available to theCommission for resolving selectedcomplaints, resolve matters morequickly without using the fullCommission enforcement mechanism,and reduce costs to both the FECand respondents.

If the Commission determines that amatter is appropriate for handling asan ADR matter, the respondent orrespondent’s representative will becontacted by a representative of the

ADR office. If the respondent is notwilling to participate in ADR, thematter is returned to the GeneralCounsel’s Office for handling throughthe normal enforcement process. If therespondent is willing to engage in theADR process and agrees to toll anyapplicable statute of limitations for the

time the matter is pend-ing in ADR, the matterproceeds to bilateralnegotiations betweenthe respondent orrepresentative and arepresentative of theADR office.

If a settlement isreached in negotiation,

it will be submitted to the Commissionfor approval. If not, the ADR processproceeds to mediation.

If an ADR matter proceeds to media-tion, the ADR office will forward tothe respondent a list of three proposedmediators, all of whom are senior,experienced, neutral professionals fromthe private sector. The respondent hasthe opportunity to choose one orreject all three. If the respondentrejects all three, the ADR office willforward a second and final list of threeproposed mediators.

The respondent and the ADRrepresentative choose a location forthe mediation session, which willgenerally last one day. During thesession, the mediator will meet bothjointly and separately with the respond-ent or respondent’s representative, andthe ADR representative, as necessary.The mediator treats as confidential allrespondent-mediator communications,i.e. the mediator does not reveal any-thing about the communications tothe ADR representative without therespondent’s permission. Moreover, no

information that respondents providein a mediation can be used in a laterenforcement proceeding.

Any proposed settlement, whetherreached through negotiation or media-tion, is submitted to the Commissionfor its approval. All approved settle-ments become a matter of public record;all are accompanied by a statement thatthe settlement was negotiated throughADR and that the settlement cannot beused as a precedent for the settlement ofother cases. If the Commission fails toapprove a settlement arrived at betweena respondent and the ADR office, thematter is dismissed.

If the negotiation and mediationprocesses fail to produce a settlement,the case is returned to the GeneralCounsel’s Office for handling throughthe normal enforcement process. Atthis point, any applicable statute oflimitations begins to run again.

The Bipartisan CampaignReform Act and the future

The Bipartisan Campaign Reform Actbecame effective on November 6, 2002,the day after the 2002 national generalelection. The coming months and yearspromise great change in the substanceof federal campaign finance law enforce-ment in the United States, as theCommission and the regulated com-munity adjust to the many substantivechanges BCRA made to the law.However, other than making it easierfor DOJ to prosecute the most aggra-vated violations as felonies, BCRA leftthe process by which FECA is enforcedvirtually untouched. The proceduresdescribed in this article will continuein place as the Federal ElectionCommission pursues its missions ofencouraging voluntary complianceand enforcing the law.


In 2000, the Commission initiatedan Alternative Dispute Resolution(ADR) pilot project to resolve certainenforcement matters. It recently madethe project permanent.

March 2003 25

1. There are some exceptions. Most notably,U.S. federal law prohibits foreign nationals –essentially meaning individuals who areneither U.S. citizens nor green card hold-ers, and corporations or other non-naturalpersons that are organized under non-U.S.law or otherwise under foreign control –from making contributions or expendituresin connection with elections for federal,state or local office. A number of specificrequirements that are beyond the scope ofthis article apply to the establishment ofa political action committee by a U.S.subsidiary of a foreign corporation, or todirect or indirect contributions from thesubsidiary’s corporate treasury to state andlocal candidates.

2. 2 U.S.C. ss. 431– 455.

3. 26 U.S.C. ss. 9031–9042.

4. 26 U.S.C. ss. 9001–9013.

5. However, DOJ has had some success usingmore general statutes to bring felony pro-secutions in cases where reimbursedcontributions have been made through“straw donors” in attempts to disguisethe identity of the true contributorand/or evade FECA’s limitations andprohibitions.

6. Pub. L. 107-155, 116 Stat. 81 (2002).BCRA introduced a number of importantsubstantive amendments to FECA, includ-ing a ban on the receipt or spending ofnon-federal funds (or so-called “softmoney”) by national political parties,2 U.S.C. s. 441i(a); new restrictions onthe receipt and spending of such funds bystate and local political party committees(which typically conduct activities thataffect both federal and non-federal elec-tions), 2 U.S.C. s. 441i(b); and newrestrictions on the sources of funding forwhat BCRA calls “electioneering commu-nications,” or broadcast advertisementsaired in close proximity to elections thatrefer to candidates for federal office with-out using words of express advocacy andare targeted to the constituency fromwhich the candidate is seeking election.2 U.S.C. ss. 434(f)(3) (definition),441b(c) (restriction on source of funds).More on BCRA’s substantive provisions,the reasons Congress passed them, and the

constitutional issues they raise can befound in Richard Briffault, “Soft Money,Issue Advocacy and the U.S. CampaignFinance Law,” Electoral Insight, May 2002,pp. 9–14.

7. BCRA’s enhanced criminal penalties arecodified at 2 U.S.C. ss. 437g(d)(1)(A) and(D). The longer statute of limitationsfor criminal prosecutions is codified at2 U.S.C. s. 455(a).

8. A judge of the U.S. District Court for theDistrict of Columbia held in 2001 that theAct’s confidentiality provision extendsbeyond closure of the matter and preventsthe Commission from making public allbut a very limited range of materials relat-ing to a MUR after the MUR is closed,AFL-CIO v. FEC, 177 F. Supp. 2d. 48(D.D.C. 2001). Prior to the decision, theCommission had always made public mostof the investigative files in enforcementmatters once they were complete. Pendingreview of this decision by a U.S. Court ofAppeals, the Commission is complyingwith it with respect to all newly closedenforcement matters.

9. Under BCRA, civil penalties for knowingand wilful violations of the prohibitionon reimbursed contributions will now bea minimum of three times the amount ofthe violation and a maximum of 10 timesthe amount of the violation, 2 U.S.C.s. 437g(a)(6)(C). This represents thefirst time Congress has provided formandatory minimum civil penaltiesfor violations of FECA.

NOTES

Digital information and communication technologiestend to have an extensive, transnational reach, may beaccessed from almost any location at any time of the day,and have the capacity to be used for various kinds oftransactions, commercial and otherwise. In this climateof technological development, many governments havebegun exploring and undertaking so-called e-(electronic)democracy initiatives.

Developments in the electronic or digitized administrationof elections and electoral processes, particularly the useof on-line technologies in voting and voter registration,should be seen within the broader context of debateabout public participation in the democratic process.1

It is suggested, for example, that measures to enhance theaccessibility of the electoral process could help encouragemore people, including youth, to exercise their rightto vote.

Voting in a secure environment by methods that protectthe privacy of voter information, ensure ballot secrecy andare accessible to all eligible electors is the cornerstone ofdemocratic elections, as articulated in the InternationalCovenant on Civil and Political Rights and other interna-tional legal instruments.2

In the context of the use of on-line/Internet and otherelectronic technologies for electoral events, the Internet asa global or transnational information and communicationsmedium raises a unique set of concerns about security, pri-vacy, ballot secrecy, accessibility for different socio-economic

groups and other matters. Many countries and sub-nationalgovernments are currently addressing these concerns andhow barriers could be surmounted so that Internet/on-linevoting may be implemented as an effective alternativevoting method.

This article examines recent global trends in voting andvoter registration through electronic means, with a focuson developments in the use of on-line/Internet voting andvoter registration to elect government representatives. Theexamination is based on an environmental scan of recentdevelopments (from September 2001 to September 2002)in e-voting and e-voter registration in various countries.Our purpose is to highlight and discuss the major themesand issues emerging from these developments.

The term e-voting, according to a recent report, mayencompass a range of methods, from electronic countingof paper ballots, to voting by direct recording electronicmachines (DREs), to wide-scale remote voting by electronicmeans. DREs may include touch screen systems or PC-basedtechnologies that use screens and keypads to register votes.The machines may be in the form of static or mobile kioskslocated at, or transported to, various public sites to facilitatevoting in, for example, the workplace, hospitals and seniors’homes.3 Remote voting by electronic means (RVEM), thatis, e-voting from places other than supervised polling stations,may include voting by Touch-Tone telephone (either landlines or mobile phones), SMS (short message service) textmessaging, interactive digital TV (iDTV) and voting overthe Internet.

Electronic Voting MethodsExperiments and Lessons

Daniel Guérin Senior Analyst, National and International Research and Policy Development, Elections Canada

Asifa AkbarAnalyst, National and International Research and Policy Development, Elections Canada


March 2003 27

Elections Canada examineson-line voter registration

Before reporting on developmentselsewhere, it should be noted that thefeasibility of an on-line voter registra-tion system is being examined byElections Canada. A study provided inNovember 2002 by CGI InformationSystems and Management ConsultantsInc. found that implementing on-linevoter registration is feasible for ElectionsCanada, assuming legal and userauthentication issues can be resolved.The feasibility study reflects ElectionsCanada’s commitment to exploringnew mechanisms to facilitate theprocesses by which electors add, updateor confirm their elector informationbetween and during electoral events.

The study was based on consultationswith internal and external stakeholdersand an environmental scan of similarinitiatives in Canada and around theworld. It sought to identify the opera-tional, legal, technical and privacyconsiderations associated with thedevelopment of an on-line voter regis-tration system and to recommend astrategy for implementing such a system.

United Kingdom

At the national level, many countriesare now considering the possibility ofimplementing full-scale electronic-enabled general elections. A numberof countries are first trying e-votingat the local level, in order to identifyproblems and potential barriers thatmay have to be overcome before apply-ing e-voting on a wider electoral scale.

Two significant initiatives to examinethe feasibility of electronic voting(including electronic voter registration)recently took place in the UnitedKingdom. The first, launched in

October 2001, was a seven-monthstudy conducted by a range of centraland local governments as well asprivate agencies to examine the possi-bilities of implementing electronicvoting. This study looked at thepotential for, as well as the implica-tions of, implementing various formsof electronic voting and vote counting,including via the Internet. Theresearch findings in the report

The Implementation of Electronic Votingin the UK, published by the LocalGovernment Association of the U.K.,were meant to pave the way for Britain’sfirst “e-enabled” general election by2008. The report concludes that theimplementation of e-voting may intro-duce greater flexibility as well asconvenience into the electoral process,and would also help modernize theelectoral system. Implementinge-voting is a complex endeavour, itemphasizes, but one that ought not tocompromise democratic principles offreedom and fairness in electoralprocesses.4

The second and related initiativeinvolved the piloting of alternativemethods of voting, including all-postaland multi-channel/electronic voting,across 30 local councils during theMay 2002 local elections. An evalua-tion, including recommendations forfuture pilots, prepared by the ElectoralCommission was part of this pilot

program and is contained in the reportModernising Elections: A StrategicEvaluation of the 2002 Electoral PilotSchemes.5 The evaluation aims to drawvarious implementation lessons fromthe pilot projects and is meant to serveas a stepping stone in the testing ofon-line and other electronic andalternative voting methods.

According to the Electoral Commission,the e-voting pilots generated a greatdeal of positive feedback from voters,candidates, agents and polling stationstaff about the convenience and easeof use of new voting methods. In termsof security, in e-voting as well as other(all-postal) pilot areas, much effort wasmade to prevent fraud and otherbreaches of security.6 In areas whereelectronic vote counting was adopted,ballot papers were printed in specialink, and counting machines rejectedpapers not printed with this ink.

The Commission states that,compared with conventional methodsof voting, there was no evidenceto suggest that any of the e-votingprocedures led to increased rates ofimpersonation or other electoraloffences. But the Commission doeswarn that, if public concerns aboutfraud were to grow, this could lessenpublic confidence in the use of e-votingmechanisms. To provide reassurance tovoters, it suggests that in the future aset of technical criteria be establishedagainst which pilots may be judged forsecurity.

The U.K. Electoral Commission assertsthat remote voting is more convenientthan traditional polling stations formany voters, and that, over time,remote voting is likely to become thenorm for most elections.7 “In themedium term, remote voting may bethrough postal voting, but over the


longer term – as Internet access anddigital television ownership grow –technology-based schemes are likely toincrease,” it observes. Nevertheless,the Commission regards it as impor-tant to retain, for the foreseeablefuture, the option of voting in pollingstations along with “remote” and otherelectronic voting methods.

While the May 2002 experienceappeared to be satisfactory, theElectoral Commission indicates thatfurther pilots are definitely necessary“to tease out a number of issues andfurther establish the security measuresnecessary to protect these systems fromattack and ensure public confidence.”8

In light of the success of the 2002pilot projects, the U.K. Governmenthas announced its intention to con-tinue on-line voting trials by invitinglocal councils to submit bids to runinnovative voting pilots in this year’slocal elections. These will includevoting by the Internet, by mobile andtouch phone, interactive digitaltelevision or by post.9

The question of electronic voting wasalso examined by the IndependentCommission on Alternative VotingMethods established by the ElectoralReform Society. Its February 2002report, Elections in the 21st Century:From Paper Ballot to E-Voting, wasbased on a study that examined newmethods of voting, including on-linevoting. It makes recommendations onthe importance of ensuring securityand secrecy of the ballot as well ascontinued public confidence in theelectoral process.10

Recent developments inother countries

The Netherlands, the United States,Australia, New Zealand, Brazil and

other governments have alsobegun piloting the use of on-line mechanisms to conductreferendums and legislativeelections. Such experimentsare being undertaken attraditional polling stationsand other public sites suchas libraries and shoppingcentres, from home and theworkplace, as well as fromother more remote locationsoverseas.

At the international and multinationallevels there also have been develop-ments in this area, involving theconsideration and implementationof on-line voting for electoral events.One major initiative is the CyberVoteproject sponsored by the EuropeanUnion (EU). It seeks to develop auniversally applicable on-line/Internetvoting system to facilitate e-votingwithin the EU. The E-Poll project isanother multina-tional on-line ande-voting initiativein the process ofbeing piloted inat least threeEuropean coun-tries: Italy, Franceand Poland.

Australia’sOn-line Councilis another exam-ple of a national forum that has beenactively discussing major issues relatedto the implementation of electronic,especially on-line, voting. It isaddressing such considerations as equalaccess to Internet technology and theso-called “digital divide.”

Several studies from the United Stateshave examined major issues and con-cerns about on-line and other electronic

means of voting. Three of these are:the National Science Foundationreport, the California Task Force onInternet Voting, and the report of theGeneral Accounting Office. Thesestudies concur that Internet voting atpolling sites may be feasible in the nearterm, but that many technological andvoter security concerns, such as ballotsecrecy and privacy, the prevention ofintrusions and accidents and the provi-sion of equal access to user-friendly

technology, mustfirst be resolved.11

In the Australiancontext, twonoteworthyreports are:Electronic Votingand ElectronicCounting of Votes:A Status Report,12

a joint endeavourof the Victoria

Electoral Commission and theAustralian Electoral Commission(March 2001); and Electronic Voting:Benefits and Risks (April 2002),13

published by the Australian Instituteof Criminology. The former examinesthe status of e-voting in the U.S. andthen discusses the feasibility of, andpossible context-specific factors to beconsidered in, implementing variousforms of electronic voting in Australia.

March 2003 29

The latter reportaims to test theeffectiveness ofelectronic votingin satisfying therequirements of freeand fair electionsand concludes thatnew e-voting tech-nologies have thepotential to bothfacilitate and hinderelectoral fraud.

Possible lessons fromrecent initiatives

In the quest to test and/or implementon-line and other electronic methods ofvoting in public elections, many coun-tries have recognized the importance ofidentifying context-specific barriers tovarious forms of e-voting. Nevertheless,certain shared concerns and considera-tions seem to have emerged acrosscountries that are experimenting withelectronic voting technologies. Theexperiences of various countries provideuseful lessons and ways of overcominghurdles to the implementation ofvarious e-voting systems.

One major recommendation has beenthat implementation ought to followan incremental or phased-in approachthat allows careful examination of par-ticular problems and issues associatedwith different forms of e-voting. Inother words, there should not be large-scale implementation of e-voting,especially RVEM, until issues ofsecurity, secrecy, technologicalpenetration and voter capacity havebeen adequately addressed.

Most recommendations from variouscountries with regard to the imple-mentation of e-voting have focused(with minor variations) on issues such

as security,secrecy andprivacy,accessibility,and publicawareness andpublic confi-dence, in abid to maintainthe integrity offree and fairdemocratic

elections. But the issues of the cost-effectiveness per ballot, the need toensure the timeliness, accuracy,authentication and verifiability ofe-ballots, as well as the need to reviewand possibly revise electoral laws, havealso emerged as important concerns.

The main concerns about securityhave generally been that eligiblevoters should be allowed to cast theirballots in an unhindered, safe manner;and that, once votes are cast, they berecorded and counted accurately. Toprevent major security risks posed bycomputerized voting, such as third-party interference through computerhacking, studies in Australia haverecommended the installation of“firewalls” and other internal controlsin government computer systems.Maintaining an accurate electoral rollhas also been recognized as essential toan efficient voting system and a meansof discouraging electoral fraud.

Effective means of voter identification,and of ensuring security and verifiabilityof votes, are also major concerns. TheUnited Kingdom, the United States,Australia and other countries havebegun experimenting with varioustechnological approaches to the properidentification of voters at the time ofvoting, through the use of such methodsas smart cards, PIN numbers, biometric(signatures, fingerprints) authentication,

and/or public key cryptography anddigital signatures.

The impact of e-voting methods onballot secrecy is also a major concern.Ballot secrecy may be compromised ina number of ways in the private sphereof the home. In the U.K. it has beennoted that voting by Internet or digitalTV, unlike by paper ballots, meansthat voting is more susceptible to the“gaze of others.”14 There may also beintentional or unintentional influenceor sometimes outright coercion of vot-ers by other family members, whichcan compromise voter autonomy.

Another concern is the cost-effectiveness of such schemes. Countrieshave tended to measure the cost-effectiveness in terms of cost per vote,that is, by comparing the amount ofmoney and other resources spent on aparticular initiative with the numberof voters who turned out to vote usinga particular e-voting method. In theMay 2002 local elections in the U.K.,turnout in the pilot areas was38.7 percent, compared to 32.8 per-cent in all local authority areas. TheElectoral Commission’s report con-cluded: “In general terms, the pilotsappeared to provide good value formoney in terms of the cost per voteras compared with previous years.”As for the pilot Voting Over theInternet (VOI), a project of the U.S.Department of Defence’s FederalVoting Assistance Program held duringthe November 2000 presidentialelections, the Pentagon receivedsevere criticism in light of the cost ofUS$6.2 million and the fact that only84 voters participated.

Another important issue for countriesconsidering e-voting, including on-line voting, is the need to makeappropriate legislative changes to


permit not only further testing butalso the wider application of suchvoting methods.

In general, researchers and publicbodies that have examined theseissues are recommending a gradualphased-in implementation approach.The implementation of wide-scale e-voting, including remote electronicvoting in general elections, is increas-ingly being viewed as feasible in themedium term and may even becomethe norm in the longer term, but not

prior to rigorous and continuous pilottesting and research. It is not yet fore-seeable that electronic means willcompletely replace conventionalmethods of voting. E-voting, particu-larly Internet voting, is consideredas a complementary alternative totraditional paper ballot voting in amulti-channel system of voting that isbeing fairly widely advocated in theU.K., U.S., Australia and elsewhere.

Ensuring security of systems, the abilityto maintain the secrecy of ballots and

voter information, organizational andtechnological capacity, availability aswell as accessibility of technology tocitizens, and voter capacity to use suchsystems are major considerations thatmust be kept in mind by those respon-sible for the implementation ofon-line/Internet voting. In the mean-time, useful lessons can be learnedfrom pilot projects and experimentssuch as those highlighted in thisarticle.

NOTES

1. OECD. 2001. “Citizens as Partners,Information, Consultation and PublicParticipation in Policy-Making,” OECDPublications, Paris.

2. See International Covenant on Civil andPolitical Rights (http://www.hri.ca/uninfo/treaties/3.shtml). “The right to participatein public affairs, voting rights and theright of equal access to public service”(Art. 25): December 7, 1996. CCPRGeneral Comment 25. (GeneralComments – from the Committee forCivil and Political Rights of the Office ofthe United Nations High Commissionerfor Human Rights).

3. “Implementation of Electronic Voting inthe UK” (London: Local GovernmentAssociation Publications, May 2002), p. 13.

4. Ibid. p. 71.

5. “Modernising Elections: A StrategicEvaluation of the 2002 Electoral PilotSchemes,” United Kingdom ElectoralCommission, 2002.

6. Ibid. p. 50.

7. Ibid. p. 78.

8. Ibid.

9. Office of the Deputy Prime Minister PressRelease, “May 2003 Elections to ContinueOnline Voting Trials” (www.odpm.gov.uk/news/0209/0086.htm).

10. “Elections in the 21st Century: FromPaper Ballot to E-Voting,” by theIndependent Commission on AlternativeVoting Methods (London: The ElectoralReform Society, February 2002).

11. See National Science Foundation pressrelease of report: “Panel Calls for FurtherStudy of Security and Societal Issues”(www.Internetpolicy.org/media/PR01-18.html). See also “Study cautionsagainst Net voting,” USA Today, February 6,2002. See also “Do Elections Need aTechnological Upgrade? Government studyconsiders whether the Net could help restorevoter confidence,” Ellie Phillips, MedillNews Service (pcworld.com), November 26,2001. See also “Congressional PanelAddresses Solution for DisenfranchisedMilitary Voters; Technology Exists Todayfor Secure On-line Military Voting,”Business Wire, October 30, 2001.

12. Colin Barry, Paul Dacey, Tim Pickering,Debra Byrne, “Electronic Voting andElectronic Counting of Votes: A StatusReport” (Victorian Electoral Commissionand Australian Electoral Commission,March 2001).

13. Russell G. Smith, “Electronic Voting:Benefits and Risks Trends and Issuesin Crime and Criminal Justice” (Canberra,ACT: Australian Institute of Criminology,April 2002), (www.aic.gov.au).

14. “Implementation of Electronic Voting inthe UK,” p. 61.

March 2003 31

The Rt. Hon. Ellen Louks Fairclough. The addition of thetitle “Rt. Hon.” to her name may appear strange given that,in Canada, that title has normally been reserved for primeministers, governors general and justices of the SupremeCourt of Canada. And most of them have been men.However, on Canada Day in 1992, Queen Elizabeth IIbestowed that title on Ellen Fairclough, almost 30 yearsafter she left Parliament. It recognized her life of manyachievements, the most notable being that she was the firstwoman to enter the federal Cabinet, on June 21, 1957. Shewas also elected to the House of Commons five times, arecord unmatched by any other woman during the 1950sand 1960s. In addition, Fairclough was responsible forIndian Affairs when, in 1960, many Aboriginal Canadianswere given the right to vote. In January 2003, she celebratedher 98th birthday.

The early years

She was born Ellen Louks Cook, in Hamilton, Ontario, onSaturday, January 28, 1905, the third of five children in afifth-generation Canadian family. On her mother Nellie’sside, she was descended from Huguenots and United EmpireLoyalists who moved to Norfolk County from Vermont in1790. Her paternal ancestors emigrated to Ancaster, UpperCanada, in 1802, from Lancaster, Pennsylvania. Her father,Norman Ellsworth Cook, had farmed in Norfolk County,but the light soil did not produce sufficient crops and, in1904, he moved his family to a house on the western edgeof Hamilton. In her memoirs, Fairclough states, “Althoughwe never went hungry, we were not an affluent family.Money was often hard to come by, especially when ‘hard

times’ descended on Hamilton, which they seemed to doperiodically.” When Ellen was nine, the family could noteven afford each child’s school fees of 10 cents per month.

A life of long hours of work began early. When Ellen was13, a flu epidemic swept the country. When most of herfamily fell ill, she was spared and, while caring for four veryill people, also had to prepare three meals a day for herfather and two boarders, make beds, and give medicationand other general nursing aid. She usually obtained highmarks at school, but by today’s standards did not receivea lot of formal education. Her family could not afford

Ellen Louks FaircloughCanada’s First Female FederalCabinet Minister

Wayne Brown Managing Editor, Electoral Insight, Elections Canada

Ellen Fairclough was elected to the House of Commons five times andas Minister of Citizenship and Immigration introduced historic legislationgiving Status Indians the right to vote in federal elections.

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“collegiate,” so instead she enrolled ina commercial studies program. Sincetaking a streetcar would cost five cents,she walked to school. She would learnsecretarial work, which would pave theway for a series of bookkeeping jobs.Sundays consisted of morning attend-ance at Zion Methodist Church, biblestudy, Sunday school in the afternoon,playing the piano and singing – butonly religious music. In 1921, at theage of 16, at a church-related socialfunction, she met Gordon Fairclough.Ten years later they would elope tomarry in Buffalo, New York. Theironly child, Howard, was born10 months later.

In those years, Fairclough does notappear ever to have thought of somedaytrying to be elected to Parliament, butshe did serve in the trenches of theConservative Party. She and Gordonjoined the Junior Conservative Cluband she would become the president ofthe local Young Conservatives organi-zation and vice-president of the YoungConservatives of Ontario.

During a 10-year period, Faircloughheld many clerical and bookkeepingjobs. In Saturday’s Child: Memoirs ofCanada’s First Female Cabinet Minister,Margaret Conrad has written that“Ellen was an ambitious and enthusias-tic recruit to the new bureaucraticprocesses, increasingly making hermark by her ability to ‘fix’ people’smuddled financial records.” She tookseveral correspondence courses andearned accreditation as a generalaccountant, making her part of a verymale-dominated profession. Heraccounting practice grew and shebecame the Secretary for the CanadianWholesale Grocers’ Association. Thoseduties included visits to Ottawa tomeet departmental officials andmembers of Parliament.

FaircloughservesHamilton

Fairclough’s firstattempt to winelection was atthe municipallevel when, in1945, TonyEvans, thelocal Tory boss,demanded sherun for a seat onHamilton’s coun-cil. She firmlyrefused. EvanstelephonedFairclough’shusband andannounced to him that she was goingto seek election. In her memoirs, Ellensays Gordon “thought this is a greatidea, and that was that. Of course, Icould have stubbornly resisted the‘call,’ but I was actually quite intriguedby the possibility of a political career.”Actually, she lost by a mere three votesand stated, “No one can ever tell methat a single vote does not count!” A fewweeks later, when an alderman resigned,the council appointed Fairclough tothe seat, which paid a salary of$400 per year. She was also active ina number of voluntary organizations asDominion Secretary of the UnitedEmpire Loyalists’ Association, ProvincialSecretary and Vice-President of theImperial Order Daughters of the Empire(IODE) and a regional chair of theZonta International women’s group,which included members from Americanstates and Canadian provinces.

A 1943 edition of the Fort William DailyNews quotes a typical passage from oneof the many speeches she made togroups across the province. “Why inthese days of co-operation, are there

no women in the legislature? Arewomen so insignificant that they haveno desire to be heard? If women werein the legislature a lot of things that aredirty would be cleaned up, they wouldn’tstand for them. Above all we mustlend our courage and trust in a massconfidence in our ability to achieve.”

Fairclough was re-elected three timesto Hamilton’s council and, in 1949,became the city’s deputy mayor.

She loses and wins

A federal election was held in 1949and Fairclough attempted her nextstep up the political ladder. She wasunanimously nominated to be theProgressive Conservative candidate inthe riding of Hamilton West. But shewas running against a Liberal Cabinetminister, Colonel Colin Gibson, whohad held the seat for almost a decade.Fairclough suspected party officials hadencouraged her to run as a way ofappealing to women voters and that,in fact, they saw no chance of aConservative winning there. She lost


Ellen Fairclough at the 1959 opening of a model home in Hamilton. Ph

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by more than 3 000 votes and theLiberal party won the national election.

The following year, Colonel Gibsonwas appointed to the bench and aby-election was called. Faircloughsoon discovered that someone wastelephoning all the delegates to thenominating meeting to persuade themto vote for someone else to carry theparty’s banner. Fairclough believedthe president of the local ProgressiveConservative Women’s Associationwas responsible, and that some localparty officials did not want a femalecandidate. Regardless, most of theother women in the Association didsupport her and she defeated her malecompetitor by a count of more thanthree to one. In the by-electioncampaign itself, she claimed theOpposition in Ottawa needed to bestrengthened and accused the Liberalsof failing to implement universalold-age pensions and to reform unem-ployment insurance. On the electioneve, Fairclough’s campaign signs werecovered by those of a competitor.Overnight, her supporters workeddiligently to counter that effort, but bymorning very few signs for either can-didate were left standing. The May 15,1950 ballot count seesawed all eveningbut, in the end, Fairclough, by a mar-gin of just over 400 votes, became onlythe sixth woman in Canadian historyto be elected to the House of Commons.She told Austin F. Cross of CanadianBusiness that her husband, Gordon,had given her great support. “He mademore than half my (campaign) plans;had wonderful ideas about publicity.”

Fairclough would be an Oppositionmember in the Commons and theonly woman with a seat there in thatsession of Parliament. Her small pie-shaped fifth floor office was jammedin beside an elevator, but she was

thankful that, unlike most of her malecolleagues, she did not have to sharespace with another member. “In myearly days in Ottawa I had more sup-port from the men in my party thanI did from the women. Many of thewomen, I think, questioned my abilityto do the job, in part because theycould not imagine themselves func-tioning in such a position.” She wasasked to serve as the Oppositionspokesperson on labour, a good fit withher other duties as a member for alarge, industrial city. Fairclough spokefrequently in the Commons and calledfor old-age pensions at the age of 65,rather than 70. However, some mediacommentators were more interested inher clothing and personal life than inwhat she said about policy. Undaunted,she introduced a private member’s billto require equal pay for equal workin areas under federal jurisdiction.During her second term in Parliament,after the 1953 general election, theGovernment enacted similar legisla-tion. The media gave Fairclough muchof the credit.

Fairclough enters Cabinet

In 1957, following a general election,Ellen Fairclough became the firstwoman in Canada’s history to be sworninto the federal Cabinet, but it almostdidn’t happen. John Diefenbaker tookpower as the Prime Minister of aminority Progressive Conservativegovernment. He had pledged toappoint a woman to the Cabinet. Hehad only two in his caucus to choosefrom and Fairclough had the longerservice and committee experience.In Saturday’s Child, Fairclough recallsher belief that Diefenbaker did notlike her. “He also had not forgiven mefor refusing to support him in his bidsfor party leadership in 1942, 1948and 1956.”

A few days after the June election,one of those Diefenbaker was likely toinclude in his Cabinet, Dr. WilliamBlair, died. “At the cemetery,Diefenbaker motioned with his headfor me to come over to his side,” shehas stated. “He asked me if I could seehim later in the day. I said, ‘Yes, when?’We finally decided upon 6:00 p.m., inhis office. I was there on time but hekept me waiting while various people,mostly members of his staff, ran in andout of his private office.” A half-hourlater, Diefenbaker told her, “I have toform a Cabinet, and it looks as if Ishall have to form it largely of myenemies.” Fairclough has said shethen denied his accusation she hadsupported one of his rivals at theirparty’s leadership convention. Shepromised the complete loyaltyDiefenbaker requested and he toldFairclough she could be the Secretaryof State in his Cabinet.

Fairclough was surprised because shehad expected a weightier portfolio.Her first inclination was to turn himdown but, instead, left Diefenbakerwith only a commitment to let himknow her answer. George Drew,a former Ontario premier andDiefenbaker’s predecessor as leader ofthe federal Progressive Conservatives,then counselled her not to reject thechance to become the first womanminister in the federal Cabinet. Thenext day, she accepted Diefenbaker’soffer. However, as Mary Lowrey Rosswrote several months later in SaturdayNight magazine, “There have been afew to point out that the Secretaryof State position is a minor Cabinetappointment and hardly adequateto Mrs. Fairclough’s talents.”

On June 21, 1957, Fairclough wassworn into Cabinet. Canada’s 90thbirthday was just a few days away and


she was surprised to discover nocelebration was planned for ParliamentHill on July 1. She was told any festiv-ities would be poorly attended becauselocal residents would be at theircottages or vacationing elsewhere.Fairclough would not accept thatexplanation and ordered planning tobegin for the first Dominion Daycelebrations in front of the ParliamentBuildings the next year.

She recalls that pressure for a distinc-tive Canadian flag was also on the rise,with thousands of suggestions comingin from across the country. “The designscame in all sizes and colours and ranthe gamut from childish scribbles onscrap paper to a beautifully embroideredwhite satin effort. I recall taking someof them with me on speaking engage-ments.” However, the Diefenbakergovernment would fall from powerbefore a new flag was chosen.

As official Ottawa got used to having afemale Cabinet minister, her husbandGordon became accustomed to oftenbeing the only male among the spousesof ministers at social events. Heenthusiastically took part, providingmore examples of the full support healways gave her.

At Citizenship andImmigration

In the 1958 general election, theProgressive Conservatives won thelargest majority in Canadian history(208 of 265 seats). Fairclough was veryeasily re-elected and appointed to themuch tougher post of Minister ofCitizenship and Immigration. In thosedays the position included responsibil-ity for the Royal Canadian Mint, theNational Film Board, the NationalGallery and the Public Archives/National Library.

Indian Affairs was also underFairclough’s jurisdiction and, in 1960,she introduced the historic legislationgiving Status Indians the right to votein federal elections. In a 1973 inter-view with Peter Stursberg, she said“I think that was long overdue and

I was very happy that it happenedin my time.” She went on to state,“Although some Native leaders fearedthat enfranchisement was a device toundermine their treaty rights, I madeit very clear that this was not the case.No Indian, or any Canadian, is forcedto vote, but it is a privilege that everyCanadian citizen has a right toexercise.” She has estimated that,as Minister, she visited as manyas 100 Native reserves in Canada.Fairclough would later receive manyhonours from Aboriginal groups,

including the Six Nations IndianBand. The Blackfoot made her anhonorary chief.

Fairclough has written that, while inpolitics, her colleagues usually treatedher as just “one of the boys,” but onone occasion she was excluded fromCabinet. Ministers were reviewing thecase of Stephen Truscott, who hadbeen convicted of the rape and murderof a young girl. Fairclough obeyedDiefenbaker’s request that she leavethe room, rather than see graphicphotos of the deceased.

Fairclough brought in reforms inimmigration policy to try to eliminaterace and ethnic origin as grounds fordiscrimination. But the intense con-troversy that accompanied post-warimmigration policy and pressure fromthe Opposition, media and the publicoften left her close to resigning.“However, I had my personal staff toconsider, all of whom would have beenout of a job if I quit. Moreover, I knewthat if I threw in the towel, the criti-cism would have been levelled at allwomen – ‘She couldn’t take it.’” Instead,she “stuck it out to the bitter end.”

The end was very difficult. TheGovernment devalued the Canadiandollar to 92 cents American, whichwas not well received by many voters.In the 1962 election, Faircloughwas re-elected, but the ProgressiveConservatives won only enough seatsfor a weak minority government.Fairclough was moved to the PostmasterGeneral’s portfolio. The Cuban missilecrisis erupted and the Cabinet wasdivided on how to respond to Americancalls for support and on whetherCanada’s new weapons system wouldinclude nulear warheads. Someministers were thought to be plottingto oust Diefenbaker, and his government

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Ellen Fairclough was sworn into Cabinet asthe Secretary of State, on June 21, 1957.She is pictured here with the Great Seal ofCanada used on all state documents forauthority and authenticity.

March 2003 35

was defeated in a vote in the Houseof Commons.

Fairclough asked Diefenbaker for anappointment to the Senate. “Despitebeing the first female Cabinet minister,I was not to be one of the chosen few,”she has written. On April 8, 1963,another general election brought theLiberals to power and Fairclough waspersonally defeated by 2 800 votes.

Life after Ottawa

“At the age of 58, most people beginto think of retirement, but not EllenFairclough,” wrote Margaret Conrad.As Corporate Secretary, “she helpedmake Hamilton Trust and SavingsCorporation into a force to bereckoned with in Ontario financialcircles and continued her activeinvolvement in a wide range of boards,foundations and voluntary organiza-tions.” She also chaired HamiltonHydro and served as treasurer of ZontaInternational.

On February 20, 1978, the House ofCommons unanimously passed a reso-lution congratulating Fairclough for“the significant contribution she madeto Canadian political life, for being,20 years ago today, the only womanin Canadian political history to serveas Acting Prime Minister.” Thelatter refers to a very brief periodDiefenbaker left her in charge of theGovernment while he was travelling.

In the introduction to Fairclough’smemoirs, Margaret Conrad recalls,in 1993, she was watching theProgressive Conservative Party’sleadership convention and saw the88-year-old Fairclough move thenomination of Kim Campbell, whowould become the country’s firstfemale prime minister. She regardedFairclough’s life as an untold story andthe next day asked Fairclough if shecould write her biography. “Shereplied immediately. Not only was sheprepared, without having met me, tolet me be her biographer; she had a

75 000-word memoir that would speedmy progress.” In 1995, those memoirswere published and Fairclough wasinstalled as a Companion of theOrder of Canada.

Ellen Louks Fairclough never saw her-self as an ardent feminist but alwaysbelieved that women could contributemore to business and political life.She proved it with her own career.“Although I never started out to bethe ‘first’ anything, it turned out thatI was the first woman in many areasof public life,” she has stated. “Therewere not many others to follow, soI just followed my own instincts.These served me pretty well over theyears, as did my willingness ‘to workhard for a living.’ And when all issaid and done, it has been a prettysatisfying life.”

Canadian Who’s Who, University of TorontoPress, Toronto.

Conrad, Margaret. “Not a Feminist, But …The Political Career of Ellen Louks Fairclough,Canada’s First Female Cabinet Minister.”Journal of Canadian Studies. Vol. 31, No. 2(Summer 1996).

Cross, Austin F. “Parliamentary Personalities.”Canadian Business. Vol. 23, No. 9 (September1950), pp. 94, 106–110.

Ellen Fairclough interview by Peter Stursberg,March 9, 1973.

Fairclough, Ellen Louks. Saturday’s Child:Memoirs of Canada’s First Female CabinetMinister. Toronto: University of Toronto Press,1995, 179 pages.

Ottawa Public Library, Biography ResourceCentre.

Ross, Mary Lowrey. “Ellen Fairclough: FirstWoman in the Cabinet.” Saturday Night.Vol. 72, No. 18 (August 31, 1957), pp. 14–15, 34.

The Hon. Ellen Louks Fairclough. Word Affairs.Vol. 24, No. 3 (November 1958), p. 13.

REFERENCES

The federal government has introduced legislation to makemajor reforms to the rules governing the financing of politicalparties and candidates and to extend them to certain otherpolitical participants. Bill C-24, An Act to amend the CanadaElections Act and the Income Tax Act (political financing), wasintroduced in the House of Commons on January 29, 2003,by the Honourable Don Boudria, Minister of State andLeader of the Government in the House of Commons. Ifpassed, it is to come into force six months after receivingRoyal Assent or on January 1, 2004, whichever is later.

This billaddresses anumber of issuescovered inModernizing theElectoral Process,the ChiefElectoralOfficer’s 2001report to

Parliament. In it, he made a number of recommendationsto improve transparency in election financing by extendingdisclosure obligations to electoral district associations, andparty nomination and leadership contests. He also recom-mended limits on all political contributions, other than toleadership contestants, and on spending in party nomina-tion contests. The Chief Electoral Officer underlined theright of Canadians to know who is financing the politicalprocess in Canada, which he said is essential “for maintain-ing the trust of Canadians in the integrity of the processand their continued participation in it.”

Overview of proposed changesThe government’s bill contains provisions that, with minorexceptions, will allow only individuals to contribute tocandidates, political parties, their local associations, andnomination and leadership contestants. The proposedamendments would also require greater disclosure of sourcesand amounts of financing, and increase public funding to theparticipants in election campaigns. As well, for the first time,

the legislation would provide for electoral district associationsand party nomination and leadership contestants to registerwith and report the contributions they have received andtheir expenses to the Chief Electoral Officer.

The government says these changes would enhance thefairness and transparency of the electoral system. “Canadianswant access to full information about how much politicalparties and candidates collect, and whom they collect itfrom,” stated Mr. Boudria, in a January 29, 2003, pressrelease. “We are determined to eliminate even the percep-tion that individual Canadians have less influence thancorporations and unions in our electoral system.”

Contributions Corporations, unions and associations would be barredfrom making contributions to any registered party orleadership contestant. However, they would be allowedto contribute up to $1 000 in total per year to a party’scandidates and nomination contestants, as well as itsregistered electoral district associations. Under the pro-posals in Bill C-24, an individual’s contributions to aregistered party and its registered electoral district associa-tions, candidates and nomination contestants would belimited to $10 000 per year. Individuals would also berestricted to a maximum of $10 000 in donations to theleadership contestants of a party, during a leadership race.Currently, political contributions can be made by individu-als, corporations, unions and other organizations, and thereare no limits on the amounts.

Greater disclosure of sources and amounts Transparency would be further enhanced by extendingdisclosure requirements to registered electoral districtassociations and leadership and nomination contestants.Currently, only candidates and registered political partiesare required to disclose sources and amounts of contributions.All contributions of more than $200 and the name andaddress of the person or organization making thedonations would have to be reported to the ChiefElectoral Officer.


Government Proposes Major Changes to Political Financing

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Electoral News in Brief

March 2003 37

Nomination contestants would berequired to disclose that informationand the expenses they incurredwithin four months of the nomina-tion contest. Leadership contestantswould need to register with theChief Electoral Officer. In each ofthe four weeks leading up to theirleadership convention, they wouldbe required to submit reports disclos-ing the amounts and sources ofcontributions they had alreadyreceived. Finally, six months follow-ing the leadership convention, theywould have to submit informationabout additional contributionsreceived and expenses incurred.

Spending limits for nominationcontestsBill C-24 would introduce spendinglimits for nomination contestants.

Their spending would be limited tohalf the amount a candidate in thatdistrict was allowed during the pre-vious election period. At present,only candidates and registeredpolitical parties are subject tospending limits, which apply duringelections.

Public financingThe provisions of the new bill wouldalso increase the public fundingavailable to registered political par-ties and make it easier for candidatesto qualify for reimbursements of elec-tion expenses. A candidate wouldneed 10 percent of the votes in theelectoral district in order to qualifyfor reimbursement, instead of thecurrent 15 percent. The reimburse-ment rate on election expenses forregistered parties would rise from the

current 22.5 percent to 50 percent,to make it equal to the rate forcandidates. In addition, a registeredparty would receive an annualallowance of $1.50 per vote obtainedby that party in the previous generalelection, provided it received either2 percent of the valid votes castnationally or 5 percent in thedistricts where it ran candidates.The allowance would be paid inquarterly instalments.

Meanwhile, to encourage contri-butions by individuals, Bill C-24would also amend the Income TaxAct to double the amount of anindividual’s donation that is eligiblefor a 75 percent tax credit, from$200 to $400. The maximum taxcredit for a political donation of$1 275 would rise to $650.

The federal government has askedCanada’s highest court for permissionto appeal a ruling that struck downlimits on how much third parties canspend on advertising during a federalelection. On February 14, the govern-ment requested the Supreme Courtof Canada for leave to appeal aDecember 16, 2002, decision by theAlberta Court of Appeal. Third partiesare individuals and groups other thancandidates, registered political partiesor their electoral district associations.

The limits were part of the new CanadaElections Act that came into effectshortly before the 2000 federal generalelection. Under that legislation, a thirdparty could spend a maximum of$150 000 nationally on election adver-tising. Of this amount, it could spendno more than $3 000 to promote or

oppose the election of any one candi-date in any single electoral district. Forby-elections, the maximum was $3 000for each electoral district.

The Alberta court, in a two-to-onedecision, ruled there was insufficientevidence to justify the legislation’srestrictions in a free and democraticsociety. “The government has failed toestablish that the sections address apressing and substantial concern,”wrote Madame Justice MarinaPaperny. The court also overturnedsections of the law requiring anyonewho incurred more than $500 in elec-tion advertising expenses to registerwith Elections Canada.

The legislation was in effect for the2000 general election, but not for thenine federal by-elections held in May

and December 2002. On June 29,2001, Mr. Justice Cairns of theAlberta Court of Queen’s Bench ruledthat sections 350 and 351 of theCanada Elections Act, respecting thirdparties’ election advertising expenses,were no longer in force. In October2000, the Chief Electoral Officer ofCanada, Jean-Pierre Kingsley, hadappeared as an intervenor before thatcourt. After the lower court ruling, heannounced that in order to achievefair application of the Act across thecountry, the Alberta court decisionwould be applied nationally.

The constitutional challenge to thirdparty limits was launched in June 2000by the president of the NationalCitizens Coalition, Stephen Harper,before he became leader of theCanadian Alliance party.

Federal Government Appeals Ruling on Third Parties


A Supreme Court of Canada deci-sion allowing inmates of federalpenitentiaries to vote in federal elec-tions was quickly implemented byElections Canada. The court deci-sion was rendered on October 31,2002, a day before the writs wereissued for two federal by-elections.The Chief Electoral Officer ofCanada, Jean-Pierre Kingsley, appliedthe Special Voting Rules for incar-cerated electors to inmates in federalpenitentiaries.

Canadians serving a term of lessthan two years in a correctionalinstitution in Canada already hadthe right to vote. The SupremeCourt, in a five-to-four ruling, struckdown a section of the CanadaElections Act adopted in 1993 thatbarred prisoners serving termsof two years or more from voting.A series of lower court rulings hadeffectively allowed all inmates tovote in the 1993 and 1997 federalelections. The right for thoseserving two years or more, however,was revoked following a 1999decision by the Federal Court ofAppeal upholding the validity ofthe prohibition.

In the latest court decision, ChiefJustice Beverly McLachlin wrote onbehalf of the majority that “the rightto vote is fundamental in our democ-racy and the rule of law and cannotbe lightly set aside.” The majorityfound that paragraph 4(c) of theCanada Elections Act violated theCanadian Charter of Rights andFreedoms and that this violationcould not be justified under section 1of the Charter. The federal govern-ment had argued that the voting banwas a legitimate punishment in addi-tion to a prison term and thatallowing inmates to vote woulddemean the electoral system. Thechallenge to the ban was firstlaunched 18 years ago by paroledinmate Richard Sauvé, while he wasserving a life term for murder.

An estimated 12 000 inmates areaffected by the latest court ruling.The first opportunity for inmates tovote following the ruling was in theDecember 9, 2002, by-elections inLac-Saint-Jean–Saguenay andBerthier–Montcalm, in Quebec.

To vote in a federal electoral event,incarcerated electors must register

by filling out an Application forRegistration and Special Ballot,which is made available througheach correctional institution. A staffmember in the institution serves as aliaison officer and helps the electorsregister. For electoral purposes, aninmate’s address of ordinary resi-dence is not the institution in whichhe or she is serving, but rather thefirst possible option from the follow-ing list: the inmate’s residence beforebeing incarcerated, the residence of aspouse or a relative, the place wherethe elector was arrested or the lastcourt where he or she was convictedand sentenced. Votes are countedand applied in the electoral districtof the address an inmate has identi-fied, rather than the electoral districtthat includes the institution.

Federal Prison Inmates Win Right to Vote

The results of more than one yearof work by 10 independent federalelectoral boundaries commissionsare expected to be proclaimed inJuly 2003 or shortly thereafter. Theprocess of readjusting electoral dis-trict boundaries, which is tied to thedecennial census, has been ongoingsince March 12, 2002, when theChief Electoral Officer of Canadareceived the latest census return

from the Chief Statistician ofCanada.

Articles published in the May andOctober 2002 editions of ElectoralInsight described the initial steps ofthe process. First, the Chief ElectoralOfficer used the census figures tocalculate the number of seatsallocated to each province, applyingthe formula and rules set out in

sections 51 and 51A of the ConstitutionAct, 1867. Based on this formula,the House of Commons will increaseby seven additional seats: three forOntario, and two each for Albertaand British Columbia. In all otherprovinces, the number of seatsremains the same. On April 16,2002, under s. 13 of the ElectoralBoundaries Readjustment Act (EBRA),10 independent commissions were

Federal Representation 2004 Update

March 2003 39

assigned the task of readjusting thefederal electoral boundaries of theirrespective provinces. This datemarked the beginning of a one-yearperiod during which the commissionsmust produce a final report [s. 20(1),EBRA].

The Chief Electoral Officer may, onrequest by a commission, extend thetime for the completion of its report forup to six months [s. 20(2)]. Noneof the commissions requestedan extension.

Between June andAugust 2002, theproposals of eachcommission werepublished in theCanada Gazette andat www.elections.ca,Federal Represen-tation 2004. AcrossCanada, 115 publichearings werescheduled andapproximately2 090 representa-tions were receivedby the commissionsfrom individuals orgroups who wishedto comment onthe proposals. Thisfigure is more than triple the numberof representations received in 1994and more than double the numberin 1987.

Although not all representations areheard at public hearings (approxi-mately 950 were heard), eachcommission seriously considered allrepresentations when completing itsreport. Some individuals preferred toforward a written representation tothe commission and some requestedthat their representations be read ata public hearing.

When the Chief Electoral Officerreceives a commission’s report, hetransmits it to the Speaker of theHouse of Commons, who then tablesand refers the report to the StandingCommittee on Procedure and HouseAffairs (a copy of the report is thenposted on the Elections CanadaWeb site). While each report is inCommittee, members of the Houseof Commons have another opportu-nity (in addition to the publichearings) to give their feedbackabout the proposed changes.

Ultimately, the final decision restswith the commission in eachprovince.

As of March 28, 2003, the reportsfrom the commissions for all prov-inces had been transmitted to theSpeaker of the House of Commonsfor tabling before the StandingCommittee on Procedure andHouse Affairs.

The House Committee beganits work on redistribution inJanuary 2003. As each report

becomes available, members of theHouse of Commons have 30 calen-dar days to examine it and to fileobjections with the Committee.An objection must be signed by notless than 10 members of the Houseof Commons. The Committee thenhas 30 sitting days to consider theobjections and return a reportto the Speaker, together with a copyof the objections and of the minutesof its proceedings. This reportmay include background informationon redistribution, general comments

by the House Com-mittee regarding theprocess and reports ofthe commissions, leg-islative provisions, asummary of the mainconcerns of members,objections filed andsuggestions offered bymembers, and recom-mendations by theCommittee.

The Speaker refersthe report (as wellas a copy of theobjections and of theminutes of proceed-ings and evidence ofthe Committee) tothe Chief Electoral

Officer, who sends it to the com-mission for consideration. Thecommission then has 30 calendardays to consider and dispose of theobjections and to provide a certifiedcopy of a report in which it respondsto the objections filed by membersof the House of Commons. Inconsidering these objections, thecommission bears in mind the repre-sentations of the public hearingsthat preceded the report. This finalreport is returned to the ChiefElectoral Officer for transmittalto the Speaker.

At one of their public hearings, held in London, are the members of the FederalElectoral Boundaries Commission for Ontario, Dr. Janet Hiebert, the HonourableMr. Justice D.H. Lissaman (Chairperson) and Dr. Andrew Sancton.

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Elections Canada is examiningthe feasibility of developing andimplementing an on-line voterregistration system. A studyprovided in November 2002 byCGI Information Systems andManagement Consultants Inc.sought to identify the operational,legal, technical and privacyconsiderations associated with thedevelopment of an on-line voterregistration system and to recom-mend a strategy for implementingsuch a system. It was based onconsultations with internal andexternal stakeholders and an envi-ronmental scan of similar initiativesin Canada and around the world.

The feasibility study reflectedElections Canada’s commitment toexploring new mechanisms thatwould facilitate the processes bywhich electors add, update orconfirm their elector informationbetween and during electoralevents. It also followed up on acommitment made in the Report ofthe Chief Electoral Officer of Canadaon the 37th General Election Held onNovember 27, 2000 to study “thefeasibility of secure on-line registra-tion and verification” as a methodof improving the National Registerof Electors.

The Register is a database ofCanadians who are qualified tovote. It contains basic informationabout each person – name, address,

gender and date of birth. Canadiansmay choose whether or not to havetheir names listed in the Register.The information in the Register isused to produce the preliminarylists of electors for federal elections,by-elections and referendums. Itmay also be used to produce thepreliminary lists of electors forprovinces, territories, municipalitiesand school boards that have signedagreements with Elections Canada,as permitted by the CanadaElections Act and provincial andterritorial statutes.

The study’s chief finding was thatimplementing on-line voter regis-tration is feasible for ElectionsCanada, assuming legal and userauthentication issues can beresolved. For the short term, it rec-ommended that Elections Canadaprovide downloadable registrationforms on-line and enable electors toconfirm on-line whether they areon the list of electors. For thelonger term, it recommended thatother registration transactions –being added to or removed from thelist of electors or the Register andhaving information changed – beimplemented incrementally. Thereport also recommended that part-nerships be established with keyagencies and initiatives such asGovernment On-Line to resolvecommon security, privacy andauthentication issues and thatElections Canada align its service

delivery channels to offer the sameservices to electors irrespective ofthe communication medium used(i.e. telephone, on-line, mail orin person).

Elections Canada surveys con-ducted after the November 2000general election found supportfor on-line registration has beengrowing, with 70 percent of electorsstating that they would like to reg-ister to vote on-line, if technologyallows. Support increased whenrespondents were reassured aboutsecurity concerns. In addition,stakeholders such as Aboriginalelectors, special needs electors andthe academic community indicatedstrong support for on-line voterregistration.

Elections Canada is presently study-ing the report’s recommendations.The availability of an on-line voterregistration system complementingexisting paper-based registrationmethods has the potential of pro-viding improved service to electors,reducing the number of elector callsand transactions that occur duringan electoral event, and improvingthe quality of data contained inthe Register.

Additional information aboutElections Canada’s on-line voterregistration strategy will beprovided in future editions ofElectoral Insight.

It is expected that the proclamationand publication of the representationorder in the Canada Gazette will occurbetween July 21 and 30, 2003 (s. 26,EBRA). Provided the representation

order is proclaimed during thatperiod, it will be in force upon thefirst dissolution of Parliament thatoccurs no earlier than July 21, 2004(s. 25, EBRA). The one-year

intervening period gives membersof the House of Commons, politicalparties and Elections Canada timeto adjust to the new electoral map.

On-line Voter Registration Feasibility Study

March 2003 41

Elections Canada Assists Afghanistan in Preparing for Elections

Senior election administration offi-cials, disability rights experts andactivists, and parliamentarians frommore than two dozen countries havedrafted a global Bill of ElectoralRights for People with Disabilities.The joint declaration was officiallylaunched at a September 2002 meet-ing in Sigtuna, Sweden. While not alegally binding document, it outlinesthe responsibility of countries toensure that people with disabilitieshave the same rights as other citizensin participating in the electoralprocess. Among the participants

from Elections Canada were theChief Electoral Officer, Jean-PierreKingsley, Deputy Chief ElectoralOfficer and Chief Legal Counsel,Diane Davidson, and Director ofOperations, Luc Dumont.

The bill resulted from the work ofthe International Institute forDemocracy and Electoral Assistance(International IDEA) and theInternational Foundation forElection Systems to bring togetherconcerned parties as equal partnersto develop such an initiative.

“International agreements place areal, positive obligation on nationstates to secure electoral rights forall citizens,” stated Karen Fogg,Secretary-General of InternationalIDEA.

An International IDEA press releasestates: “In many new democracies,election observers cite problems withinfrastructure, in particular inade-quate physical access to pollingstations, as a key factor limitingdisabled people’s ability to partici-pate in elections.” It adds that

Global Bill of Electoral Rights for People with Disabilities

Elections Canada is providing sup-port and technical expertise to theUnited Nations Assistance Missionto Afghanistan (UNAMA) to helpAfghanistan (Transitional IslamicState of Afghanistan) prepare forgeneral elections that havebeen tentatively scheduledfor June 2004. The assist-ance was announced onJanuary 13 by the ChiefElectoral Officer of Canada,Jean-Pierre Kingsley.

Under the general leader-ship of UNAMA, ElectionsCanada is providing stra-tegic oversight for theElections and Registrationin Afghanistan (ERA)Project in co-operationwith the InternationalFoundation for ElectionSystems (IFES). IFES providesprofessional advice and technicalassistance in promoting democracy,and serves as an information sourceon democratic development.

The Chief Electoral Officerappointed Mr. Jean-Jacques Blais asthe Head of Mission for the ERAproject. Mr. Blais is responsible forthe overall conduct of the ERAproject. Mr. Blais is a former federal

minister and has been a member ofseven election observation teamsorganized by the Commonwealth,the Organization of American Statesand the United Nations. He led the

Commonwealth observation teamin Cameroon. Mr. Blais was DeputyChairman of the ProvisionalElection Commission for BosniaHerzegovina and was invited byYemen to review proposals on

electoral reform.

Under the BonnAgreement, UNAMA willsupport Afghanistan inconducting elections. TheCanadian government,through the CanadianInternational DevelopmentAgency, has allocated$1.5 million in assistancefor the ERA project. Theproject will focus on fivecomponents of an electoralsystem: institutions andsystems of representation asestablished in the constitu-

tion and electoral law; electionadministration; voter registration andidentity documents; political partiesand campaigning; and media andmonitoring.


Canada and Sweden “are leading theway in ensuring that polling stationsare made fully accessible to peoplewith disabilities.”

The Bill of Electoral Rights forPeople with Disabilities will serve asa practical advocacy tool for disabilityorganizations and others workingat the national and internationallevels to improve access to theelectoral process for people withdisabilities. The declaration includesthe right to secret voting, full physi-cal accessibility of polling stationsand full and equal electoral rights forpeople with mental disabilities. Italso guarantees that citizens witha physical, sensory, intellectual orpsychiatric disability have the rightand opportunity:

• to have access on general terms ofequality to the conduct of publicaffairs, directly or through freelychosen representatives

• to participate on general termsof equality in the conductof elections

• to register for, and to vote ingenuine and periodic elections,referendums and plebiscitesdetermined by universal andequal suffrage

• to vote by secret ballot• to stand for election, to be elected

and to exercise a mandate onceelected

The September conference alsoapproved Standards of ElectoralAccess for Citizens with Disabilitiesthat provide further explanation of

the bill (see www.electionaccess.org/rs/Discussion_Paper.htm).

Over the years, Canada’s electoralprocess has undergone many changesto make it as accessible as possibleto all electors. A very importantimprovement is the special ballot,which allows Canadians to vote bymail or in person at the office oftheir returning officer. ElectionsCanada has also modified buildingsand offices used during federal elec-tions to ensure that all revisal offices,polling stations and other premiseshave level access.

Additional services include mobilepolling stations, and information inalternative formats, such as large print,Braille, audio-cassette and diskette.

Harry Neufeld was sworn in asBritish Columbia’s new ChiefElectoral Officer on November 7,2002. A special committee estab-lished by the province’s LegislativeAssembly unanimously recom-mended his appointment.

Mr. Neufeld has 20 years of experiencein electoral management, includingpositions with Elections BC,Elections Canada and the UnitedNations. He has also written articleson electoral management publishedby the International Institute for

Democracy and Electoral Assistance(IDEA), the International Foundationfor Election Systems and the UnitedNations Electoral Assistance Division.He is responsible for the administra-tion of the province’s Election Act,Referendum Act and Recall andInitiative Act.

Robert Patterson left the provincialChief Electoral Officer’s position onJune 6, 2002, when his term expired.He had been involved for 30 yearswith administering the democraticprocess in British Columbia and had

held the position of Chief ElectoralOfficer since 1990.

British Columbia has new Chief Electoral OfficerPh

oto:

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Harry Neufeld, Chief Electoral Officerof British Columbia

March 2003 43

Law Commission of Canadaconducts consultationThe Law Commission of Canada hasbeen conducting public consultationsabout possible reform of Canada’selectoral system, and intends to tableits recommendations in Parliament.The Law Commission is an independ-ent federal law reform agency thatadvises Parliament on how to improveand modernize Canada’s laws.

To stimulate public discussion anddebate, the Commission released adiscussion paper, Renewing Democracy:Debating Electoral Reform in Canada.Nathalie Des Rosiers, President ofthe Commission, stated that there isa growing perception in Canada thatour democratic institutions may nolonger reflect the way in whichCanadians engage and participate inpolitical life. “Our current votingsystem seems unable to reflect thediversity of Canadian society and thevariety of perspectives that charac-terize our country,” added DesRosiers when the discussion paperwas released. “It is also problematicbecause a party can win a majority ofthe seats in Parliament or legislatureswith only a minority of the vote.”

Since the release of RenewingDemocracy in October 2002, the LawCommission has held public consul-tations on the current voting systemand its alternatives in Toronto,Ottawa, Montréal, Vancouver,Charlottetown and London, Ontario.Other consultations are being plannedfor other parts of the country. TheCommission’s electoral reform proj-ect is part of its strategic work on“governance relationships,” whichreflects the view that there is more toaddressing concerns about democratic

processes and institutions than seek-ing a way to change how Canadiansvote.

More information about the LawCommission’s electoral reform initia-tive and the discussion paper areavailable at www.lcc.gc.ca.

Prince Edward Island The government of Prince EdwardIsland has initiated an independentexamination of Prince Edward Island’selectoral system. Its November 14,2002, Speech from the Thronepledged to appoint a commission onelectoral reform. On January 21,2003, Premier Pat Binns announcedthat the Honourable Norman H.Carruthers, retired Chief Justice ofthe Supreme Court of Prince EdwardIsland, had accepted an appointmentto head the Commission. “I haveasked the Commissioner to engageIslanders on the important issue ofelectoral reform so that the ElectionAct, associated legislation and themanner in which our LegislativeAssembly is selected continues to berelevant and effective,” stated thePremier. An interim report isexpected to be submitted in fall2003, and a final report is to becompleted in 2004.

Last April, Merrill H. Wigginton, theprovince’s Chief Electoral Officer,submitted a report on proportionalrepresentation to the Speaker of theLegislative Assembly (see the October2002 issue of Electoral Insight). Herecommended that “any bindingdecision for one system over anothersystem should be left to a provincialreferendum, preceded by an impartialcampaign of public education aboutthe issues involved in the choice.”

British ColumbiaThe British Columbia governmentannounced in the Speech from theThrone on February 11, 2003, thata motion would be introduced in thelegislature to initiate the process ofestablishing a citizens’ assembly onelectoral reform. As a preparatorystep, on September 20, 2002, thegovernment appointed GordonGibson, a former leader of the B.C.Liberal Party, to develop recommen-dations on how the assembly shouldfunction and be structured. Thecitizens’ assembly will assess variousmodels for electing the MLAs,including preferential ballots,proportional representation and theprovince’s current electoral system.

Mr. Gibson has submitted a papertitled Designing the Citizen’s Assembly,which states: “In British Columbiawe employ the traditional ‘first pastthe post’ (FPTP) system, which fromtime to time has yielded quite unusualresults. We have seen situationswhere the party with the largestpercentage of votes did not formgovernment, or where governmentholds a disproportionate numberof seats compared to the vote itreceived.” He also notes that theneed for any reforms is not yet clearbecause “many feel that the currentsystem has served us reasonablywell since the founding of BritishColumbia and there is no need forchange.” Mr. Gibson’s paper isavailable at www.ag.gov.bc.ca/legislation/citizensassembly.

If the citizens’ assembly recommendsa change to the electoral system, thatoption will be presented in a referen-dum question at the next provincialelection scheduled for May 17, 2005.

Consultations on Electoral System Reform

QuebecOn June 20, 2002, the Premier ofQuebec, Mr. Bernard Landry, andthe Minister responsible for theReform of Democratic Institutions,Mr. Jean-Pierre Charbonneau, pub-lished a discussion paper titledCitizen Empowerment. The paperwas designed to provide a basis forreflection by addressing 10 themesrelated to democratic institutions,ranging from modifying the currentelectoral system to the possibleadoption of elements of a presiden-tial system.

On September 5, 2002, Mr. ClaudeBéland was appointed to chairthe Steering Committee of theEstates General on the Reformof Democratic Institutions. TheCommittee held consultations fromOctober 15 to November 27, 2002.Almost 225 briefs were presented.

The Estates General was held onFebruary 22 and 23, 2003, withalmost 1 000 people participating.

The participants discussed 10 issuesrelating to the themes in the discus-sion paper.

Some of the notable results of theEstates General were:• 66 percent were in favour of the

current first-past-the-post systemincorporating elements of propor-tionality to reduce any distortions

• 53 percent supported changesto the current political systeminspired by the rules of the tradi-tional parliamentary system, while47 percent favour changes inspiredby the rules of the traditionalpresidential system

• 82 percent wanted elections to beheld on set dates

• 58 percent were against loweringthe voting age to 16

• 80 percent were in favour of apopular initiative process thatwould allow referendums oncertain major issues

• 74 percent were in favour ofincentives to assist the access ofwomen to political institutions

• 65 percent were in favour of incen-tives to promote ethnoculturalcommunity members’ access topolitical institutions

• 74 percent were against having asecond legislative chamber withan equal number of representativesfrom each region

The Steering Committee submittedits report to the government in earlyMarch 2003. It can be viewed atwww.pouvoircitoyen.com/en/estates/welcome.html.

Before the April 14 provincial electionwas called, another initiative was beingconducted by the National Assembly’sCommittee on Institutions. Its objec-tives were to assess the current votingmethod and propose improvementsto it. The Committee published adiscussion paper in October 2002titled The Reform of the Voting Systemin Quebec, which explores the variousexisting electoral systems and pro-poses avenues for reform of thevoting method in the province.


Election Legislation Enforcement - Elections in Canada Electoral Insight Enforcement of the Canada Elections Act Raymond Landry Commissioner of Canada Elections The contemporary electoral

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