Not over yet

The super-tightelection race in Vancouver-Burrard between NDP candidate Tim Stevenson and Liberal incumbent Lorne Mayencourt is still in dispute and may go before the courts for resolution.

The official results, after the judicial recount conducted earlier this month, show Mayencourt at 12,009 votes with Stevenson trailing by a mere 11 votes. Stevenson and Mayencourt have traded the lead back and forth multiple times in this race since the first ballot was cast on election night.

Although Mayencourt has been sworn-in as the riding’s MLA, Stevenson and the NDP point to errors made by Elections BC officials that may have impacted the outcome of the race.

“I’m really concerned by some things that have arisen,” says Stevenson. “Primarily there are 71 absentee ballots that were not opened because there’s an error in them. They weren’t signed or whatever. The error was made by Elections BC, not by the people who were voting.”

Of the 71 ballots in question, 60 were cast at St John’s United Church in the West End by voters who were assigned to other voting places. The remaining 11 votes are from voters who voted at other voting places around the riding, but not at the ones to which they were originally registered.

According to the Election Act, when a voter wants to vote at a voting place to which they were not assigned, elections officials are required to place their absentee ballots into a secrecy envelope. The secrecy envelope is, in turn, sealed into a certification envelope. The voter is supposed to complete a form on the outside of the certification envelope so their eligibility to vote can be verified. It’s a measure to ensure that no one casts more than one vote.

If any step is missed, the ballot cannot be counted.

In the case of the 60 absentee votes at St John’s, the ballots were not enclosed in certification envelopes.

For the remaining 11 votes around the riding, ballots were properly sealed into certification envelopes but the voters failed to sign the envelopes, which invalidates their votes, too.

Because St John’s is in a part of the riding that strongly supported Stevenson, counting those votes could potentially swing the outcome of the election back in Stevenson’s favour.

“The certification envelope should have been completed,” says Elections BC spokesperson Jennifer Miller. “It was an election official error.

“Unfortunately when we went to do the final count, we followed the Act and unfortunately some of those ballots were not counted.

“As administrators we could not compromise the integrity of the process by not following the Act,” she continues. “The Associate Chief Justice [Patrick] Dohm knew of the ballots when he did the [judicial] recount and supported our decision to disqualify the ballots based on the fact that the Election Act must be followed.”

How did an Elections BC official make such a critical mistake?

“Voting for voters in BC is more accessible than in any jurisdiction in Canada,” says Miller, “but there are more administrative procedures. We do comprehensive training. From the 2001 election to this one, we have really gone a long way in our training…

“It’s very isolated, but you may have an election official that does not follow the sections of the Act. Unfortunately in this case, this is what has occurred.”

The deadline for Stevenson to apply for another judicial recount to the BC Court of Appeal has passed; he and the NDP chose not to appeal.

Stevenson says he didn’t appeal for another recount “because basically all that does is do the same thing [as the first automatic judicial recount]. You get another judge, go through all the counting, so on and so forth, so there’s little value in that.”

In other words, another judicial recount would most likely arrive at the same result, with Mayencourt ahead by 11 votes, since it would be governed by the same set of Election Act rules. According to the Act, the 71 votes can’t be counted because they can’t be verified.

But those 71 votes represent 71 people who have been disenfranchised, at least 60 of them through no fault of their own.

“I think disenfranchised is the wrong word for it,” says Mayencourt. “I think the Election Act is designed to protect citizens from electoral fraud. There are precautions that are built into the Act.

“Those individuals, even though it says on the envelope that it had to be signed and sealed, didn’t do that.

“The Elections BC returning officer that was there, I don’t know who that person was, I didn’t hire them. But I do know what the Act says. They should have known as well,” Mayencourt continues. “It’s regrettable, but that is the way we’re protected against fraud in voting.”

Stevenson says he and the NDP are considering other ways to get the votes counted.

“We have to go another avenue if we pursue this,” says Stevenson. “We think there has been a gross error made because these people have not exercised their franchise and we want someone to rule that [the votes] be opened, and that is very different than just an appeal.

“I’m not sure in total right now what it amounts to, or what the process might be, but there are lawyers now looking into it,” he continues. “It’s extremely important obviously because 60 ballots makes all the difference in the world.”

What’s the most likely option for Stevenson?

Under section 150 of the Election Act, Stevenson and the NDP could apply to the BC Supreme Court to have the election declared invalid on the grounds that it was not conducted in accordance with the voting rules outlined in the Election Act. If the court is asked to hear the case and rules the election invalid, the Vancouver-Burrard seat will be declared vacant and a by-election will be called.

There are no provisions in the Election Act to permit the 71 spoiled votes to simply be counted.

Stevenson says if another election is called, he’ll be ready for another campaign.

Mayencourt says he’d just like to see a decision reached fast. “If they feel they should overturn the election and they have a good argument, then they should do it quickly because as it sits right now Elections BC has declared me the winner. So this riding is being represented by me.”