Raise the Hammer
Returning officers have profound powers over the democratic process, but their main role is to enhance our democratic institution.
By Lorenzo Somma
Published April 18, 2011
Society must take every means at its disposal to defend itself against the emergence of a parallel power which defies the elected power.
-- Pierre Elliott Trudeau
A close inspection of the our election system and the process of running for office in Canada has brought me to draw some conclusions about the recent rejection of Hamilton Central Green Party Candidate Karen Burson. When you actually sit down and look at the role that Elections Canada and its members play on how our democratic process works, you begin to see many holes. The only remedy is a more informed and engaged public.
A recent article published in the Hamilton Spectator provides a basic breakdown of the story. The following questions still need to be answered: Who a Returning Officer (RO) is; and what role they have in governing our elections. This entire situation seems to be more about paperwork than about principles, and that is where we all lose out.
When you look at the complete job description of a Returning Officer, you begin to understand how important and powerful their position is in our democracy. The position's main role is summarized in its Key Activities:
These seem straightforward enough, but each requires a myriad of actions and resources. According to the profile of an RO the duties are:
The primary duty of returning officers is to run electoral events in their electoral districts. In addition to those many and varied tasks, during an electoral period, they must allow public inspection, on request, of a confirmed candidate's nomination papers. Following an election, they must also allow public inspection, on request, of candidates' election expenses reports for the six months after they become available.
Returning officers must also be free to participate in a variety of activities between electoral events. They receive briefings on any new legislation and training in new procedures. They also participate in special projects and consultations, as required by the Chief Electoral Officer, to help ensure better access to the electoral system for all electors.
Now here is where we begin to see the complexities of what a Returning Officer really does. While the job description and profile are only two pages long, the actual roles and responsibilities of a Returning Officer are staggering.
This is compounded by the short amount of time for which a Returning Officer has to fulfil their role. (an election from start to finish can take place is under 36 days.) Just how much needs to be done in this time? Take a gander at the Returning Officer Manual [PDF link] issued by Elections Canada.
This 838 page document out lines everything that is required for a Returning Officer to set up and break down an election. Needless to say, a Returning Officer has a lot on their plate. On top of needing to fill the roles outlined here, they also need to be intimately familiar with the Elections Canada Act and Referendum Act.
This position requires a vast amount of information and operational procedure - and final authority falls on the shoulders of a single person. When you examine all these sources, you will find that the RO authority is far-reaching, with many specific mandates mixed with broader principals making for a very complicated position.
When everything else fails, people in positions as powerful as this need to give into the spirit of their role: leadership trumps management. Specifically, the spirit of the Returning Officer role includes:
There are rules pertaining to a Candidate's eligibility, and for Karen Burson these rules are being followed to the letter.
9.2.5 Detailed Verification Process
The RO must thoroughly verify each Nomination Paper received within 48 hours after its receipt. Refer to the Nomination of Candidates: Detailed Verification Checklist on page 20-27. Use a new checklist for each Nomination Paper submitted by a candidate.
Follow each step in the process and note any problems on the checklist. Attach the checklist to the nomination documents. If the nomination documents are re-verified, a new checklist is required.
Clerical assistants should conduct the verification of all supporting electors on pages 13 to 28 of the Nomination Paper. For this purpose, hours are allocated in the office clerk budget. Begin the verification process after the receipt of the nomination documents and continue until:
- 100 electors (50 electors in EDs in Schedule 3 of the CEA) are confirmed as supporting the nomination; or
- 48 hours have elapsed and the required amount of electors is not confirmed.
ROs should plan this exercise when they have an idea of the number of potential candidates likely to run in the ED and when the candidates are going to submit their nomination documents.
I would like to highlight the last statement in this process:
During the verification process, inform the candidate of the progress on a regular basis (for example every 4 hours). Potential candidates must have sufficient opportunities to correct their Nomination Paper before the deadline. Do not wait until the 48 hours have expired to notify a potential candidate of problems encountered in the verification process.
When you examine the facts as they have been presented, you begin to see that this situation warrants further attention.
First of all, once you look at everything a RO needs to do, you see that they may simply have too much on their plate - take a look at a RO per-candidate registered date checklist. On top of everything, The RO has to go through the large requirements of all potential candidates: maintaining operations, and communicating back and forth with all key players.
This may be too much work in too little time. Examine the "Nature of the Work" and you find something is not adding up.
The work of returning officers is extremely demanding during an election or referendum. Returning officers work long hours, seven days a week, during the minimum 36-day electoral period (that is, from the date the writ ordering the election is issued until polling day) and for several days after polling day. A returning officer must be available all day, every day, during that time. Between electoral events, returning officers must be free to carry out intermittent or part-time tasks, such as pre-event planning assignments, and to attend training or briefing sessions, etc.
According to the Spectator article published prior to Hamilton Centre Returning Officer James Winn's decision to exclude the Green Party:
[Green Party spokesperson Kieran] Green said "from our perspective" the party had fulfilled "our obligations" in making Burson its Hamilton Centre candidate after its first candidate Megan Byrne dropped out earlier this month.
Green said Burson and a representative went and saw Winn April 8 with her candidate documents. He said letters from the party's auditor and leader Elizabeth May were couriered down from Ottawa.
"Our candidate had brought in all her paperwork. She had brought in her deposit. The returning officer claimed he had the auditor's letter, but he did not have the endorsement letter. Those two items were coursed together."
Green said the party produced a second endorsement letter. "On Friday, when he said he did not have the endorsement letter, he handed the entire package of materials back to them and said 'Take them away."
Green did admit there was an error in the deposit as the money order was made out to Elections Canada rather than the receiver general, but it was easily corrected.
"They tried to contact the returning officer to bring the documents back in and he told them, 'It was premature.' He would not let them come in and see him. They waited to hear from him. They waited and waited and they did not hear from him until the cut off time (Monday at 2 p.m.) and he told them 'It is now too late."
Remember that the "Nature of the Work" of an RO specifies: "A returning officer must be available all day, every day" during an election. Now look at the greater principles of Elections Canada and you will see that sometimes you need to know when to value principles over procedures:
Mission
Ensuring that Canadians can exercise their democratic rights to vote and be a candidate.
Mandate
Elections Canada is an independent, non-partisan agency that reports directly to Parliament. We must be prepared at all times to conduct a federal general election, by-election or referendum, administer the political financing provisions of the Canada Elections Act, monitor compliance and enforce electoral legislation. Elections Canada is also mandated to conduct voter education and information programs, and provide support to the independent boundaries commissions in charge of adjusting the boundaries of federal electoral districts following each decennial census. Finally, Elections Canada may carry out studies on alternative voting methods and, with the approval of Parliament, test electronic voting processes for future use during electoral events.
Values
Our day-to-day activities and decision making are guided by the following key values:
- a knowledgeable and professional workforce
- transparency in everything we do
- responsiveness to the needs of Canadians involved in the electoral process
- cohesiveness and consistency in administering the Canada Elections Act
- continuously earning and maintaining the public's trust
- stewardship and accountability in how we manage our resource
[emphasis added]
An organization's Mission Statement should be the default position that any high-ranking official takes when the heat is on and the right choices need to be made. All of the Values presented are crucial to our democracy and I emphasized the three main ones that matter for this case.
An organization's Values should act as a lens from which all members look through when making decisions. Regardless of the pantheon of tasks the need doing, the integrity of any organization requires a commitment to their Mission and Values.
The rest is procedures and help get the job done - but without principles, it is all for naught.
According to the Returning Officers Manual, there is room for individual Returning Officers to make judgement calls to ensure the integrity of our democratic system is maintained:
Interpretation
While this code, as an instruction, is comprehensive and stands alone, it should be read in conjunction with the applicable provisions of the law, namely the Canada Elections Act and the Referendum Act, and the procedures set out in the Returning Officer's Manual. Where election administrators need professional advice to interpret the Canada Elections Act or this code, election administrators should consult with appropriate officials at Elections Canada.
For all the reasons presented here and more, the Returning Officer can and should use their power to maintain the spirit of our democracy. The power to allow our democracy to function properly rests solely in the hands of the Returning Officer. In this case, they are well within their rights to make an exception, and since the principles of Judicial Precedent do not apply to the Returning Officer, there should be no worry of compromising our system.
The Green Party is a Major party and their star is in ascendance. Let them run, let them work and let Canadians decide who they want to represent them.
This issue of the powers of the Returning Officer are not new. Indeed, a review was conducted by elections Canada in 2001. Many of the same problems Hamilton Central's Green Party candidate faces have been noticed by others.
In the Elections Canada report on the subject, solutions were outlined to ensure every Canadian that wishes to run for office can do so. The report outlines how concepts such as the required nomination papers are an archaic principle based on laws put forth in 1874, and how such requirements hamper our democracy.
The report provides solutions that I encourage all who read this to look into, as they will improve our system.
Mr. Winn's power over the democratic process is profound, but his main role is to enhance our democratic institution. Can we honestly say the decision he made to exclude a candidate from running in the 2011 federal election serves the best interest of the institution he serves?
Mr. Winn, you have the power to allow the Green Party to run in this election: to allow the voice of thousands of Canadian citizens to be heard, to ensure our electoral process remains the envy of the world. Do what is right for the City of Hamilton, for the people of Canada and for all citizens who value the principles of democracy above all others. Accept Karen Burson's application.
References:
By simonge (registered) | Posted April 18, 2011 at 10:46:11
Nice job! I really hope Mr. Winn reads this. Could be made mandatory reading for any new RO really.
By pointy head (anonymous) | Posted April 18, 2011 at 12:28:22
This, this, a thousand times this! Like typical the bureaucrats see their role as being to enforce the rules and stop people doing things instead of to HELP and ENABLE people to do the things they're trying to do.
By bob lee (anonymous) | Posted April 18, 2011 at 14:52:19
let's simplify this story.
The Green Party got their papers to Winn on Friday for a Monday deadline, is that right? There were a number of errors: wrong date on auditor form 2, wrong auditor form listed on nomination form, and the wrong recipient on the money order
Your argument is that Winn at this point did not meet either 1. the mission statement principles, or 2. the 'nature of the work' description?
It sounds to be like Winn vetted the documents immediately, telling Burson and friend what was wrong and redress the errors. They then got new documents together, but we don't know at what point these were ready. Then they 'waited and waited'... until Monday afternoon.
Try reading the mission statement and 'interpretation' guideline from Winn's point of view. Accountability to the Canadian people? Stewardship? You achieve that by going through your procedures promptly and thoroughly. We don't have a single piece of evidence yet to indicate Winn did not so do.
By Brandon (registered) | Posted April 18, 2011 at 16:17:22 in reply to Comment 62412
From the Candidate:
He would not let them come in and see him.
From the "Nature of work":
"A returning officer must be available all day, every day" during an election.
How does Winn's point of view support not letting them come in and see him with the corrected documents?
Comment edited by Brandon on 2011-04-18 16:19:09
By bob lee (anonymous) | Posted April 18, 2011 at 18:18:23 in reply to Comment 62416
I'd like to know how and when this all happened. What does "he did not let them mean"? as in they showed up at the returning officer's door on Saturday morning with all corrected documents? It's an open office. They were still trying to fax a second auditor's form to him on Monday, so clearly that wasn't ready until then.
By Brandon (registered) | Posted April 18, 2011 at 21:14:10 in reply to Comment 62423
As long as they showed up before the deadline, it doesn't matter. The fact that he refused to allow them to present their information and then told them "It is now too late" does matter.
By bob (registered) | Posted April 18, 2011 at 21:58:11 in reply to Comment 62427
they didn't show up by the deadline. They say they were still attempting to fax a correct endorsement letter before and after the deadline on monday. But the 'fax didn't complete.' We don't know if they ever corrected the auditor's form error or the money order error or the nomination form error.
By SpaceMonkey (registered) | Posted April 19, 2011 at 17:27:47 in reply to Comment 62429
I'm really curious about what the fax "didn't complete' means.
Was Mr Winn's fax machine off? Did he do something to the machine so that it wouldn't properly accept a fax?
It's hard to know without more details.
By thrillhouse (registered) | Posted April 18, 2011 at 18:33:43 in reply to Comment 62423
I'd also like a better account of what actually happened.
However, how long they waited is a red herring: the only relevant issues are (i) whether they in fact attempted to submit their corrections before the close of nominations, and (ii) whether the returning officer's actions prevented their corrections from being submitted before the close of nominations.
Both are a bit less than clear at this point, though.
Comment edited by thrillhouse on 2011-04-18 18:38:42
By thrillhouse (registered) | Posted April 18, 2011 at 18:36:05 in reply to Comment 62419
You don't have to like a party to support their right to seek election.
By Brandon (registered) | Posted April 19, 2011 at 10:20:13
We have them claiming that they had everything corrected but that he told them not to come and see him.
The point is that he made himself unavailable to them.
By bob (registered) | Posted April 19, 2011 at 11:55:29 in reply to Comment 62449
I'll repeat myself because you're repeating yourself: these are claims. They are very shaky and uncertain. They claim to have corrected the papers but clearly at least one was still not corrected by Monday. We don't know about the others. He told them to take back the papers; does that mean he refused to see new ones or he refused the erroneous ones? He refused to make himself available in what way?
By Brandon (registered) | Posted April 19, 2011 at 17:12:08 in reply to Comment 62459
Nowhere does it say that it wasn't corrected until Monday.
From the article:
“They tried to contact the returning officer to bring the documents back in and he told them, ‘It was premature.’ He would not let them come in and see him. They waited to hear from him. They waited and waited and they did not hear from him until the cut off time (Monday at 2 p.m.) and he told them ‘It is now too late.”
Unless you're accusing them of lying it appears that he refused to see the corrected papers and refused to make himself available to them to file the corrected papers.
By bob lee (anonymous) | Posted April 19, 2011 at 18:07:47 in reply to Comment 62471
They met with Winn friday, handing over the EC form referencing (incorrectly) a local auditor form, which had the wrong date and typeface, and a money order with the wrong recipient. The Green Party sent an endorsement form that there was something wrong with, presumably that it was not signed by hand, and an official auditor's form, which Winn would not let them substitute for the other because their nomination form referenced the other. Winn gave them presumably all of these forms back, though they attempted to leave form 1 with him, which is odd since it was incorrect.
The next thing we know is: "On Monday, our auditor made repeated attempts before and after the deadline to fax a third endorsement letter signed by hand to Mr. Winn, which he told them would be acceptable, but the fax could not complete."
So in between Friday and Monday it appears a second endorsement letter materialized and then a third took its place, a correct EC form was filled out presumably referencing the correct auditor's form, a new auditor's form was filled out, and a correct money order was made.
However the correct endorsement letter was not faxed through by the deadline.
From the Spec: "They tried to contact the returning officer to bring the documents back in and he told them, 'It was premature.' He would not let them come in and see him. They waited to hear from him. They waited and waited and they did not hear from him until the cut off time (Monday at 2 p.m.) and he told them 'It is now too late."
This then is inaccurate, it refers to "the documents" as though all were ready and yet at least one was not. We also don't know when any of this took place. I repeat: how did he "not let them" come in? Did he lock the door?
By Brandon (registered) | Posted April 19, 2011 at 19:10:24 in reply to Comment 62474
If he told them that to come at the time was premature, then obviously he had a reason for telling them this.
This reason is the key to everything and without it there's no point to discussing it any further as I can't think of a reason that isn't damaging to Winn.
By bob (registered) | Posted April 19, 2011 at 20:47:04 in reply to Comment 62475
Here's one reason: they simply didn't have the forms together yet. He told them to come back when they have all the forms. Maybe they didn't do that.
I agree the reasons are everything in this story, but given the uncertainty we have, and all the errors and inconsistencies I've listed, I'd say it's a bit premature for people to either accept the party line here or to hammer on Winn.
By Undustrial (registered) - website | Posted April 20, 2011 at 10:57:04
The burden of proof is on Winn. Firstly, as described in the article, it is his job to facilitate the entry of candidates into the electoral process, and to be as inclusive as possible. Secondly, the errors described don't indicate that Burson is seriously lacking anything she "needs" to run legally - only paperwork and deadline issues. And thirdly, excluding a party/candidate from an election is a very serious decision, which should require more than an "I said so".
I'm willing to hear him out - but I've heard very little so far to justify this action.
By teeb (anonymous) | Posted April 22, 2011 at 11:08:40
That Winn has not come forward to clarify exactly what has happened is both highly suspicious and would seem to be very disrespectful to his RO position and us, the citizens of this democracy. I want to know the specific details from Winn! What can I do!?
By ali (anonymous) | Posted April 29, 2011 at 08:33:14
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