Teale Phelps Bondaroff was sworn in as a Saanich councillor on Monday after a judge denied Rishi Sharma’s request for a recount; Sharma trailed by 11 votes. The judge ruled there was insufficient evidence that the count was wrong.
A Victoria lawyer says the provincial law and municipal bylaw that shaped the case should be changed.
Phelps Bondaroff received 9,218 votes to Sharma’s 9,207 in the Oct. 15 election.
Defence lawyer Michael Mulligan happened to be in court on Oct. 24 when lawyer Bruce Hallsor, on behalf of Sharma, requested a recount. It was denied by provincial court Judge Lisa Mrozinski.
The Local Government Act section 148 sets out three scenarios in which a recount can be ordered: Votes incorrectly accepted or rejected; ballot account does not accurately record the number of valid votes; the final determination did not correctly calculate the total number of valid votes. There was insufficient evidence to support at least one of these points, the judge found.
That section also says an application for a recount must be before a court within nine days of the close of the vote, and section 149 says a recount, if approved, must be completed within 13.
Mulligan argues he’d scrap the 13-day requirement to complete a recount because it is too restrictive. Also, he’d amend a Saanich bylaw — also cited by the judge to deny the recount application — because it says an “acceptable mark” is one “that the vote tabulator is able to read and count” which essentially means the ballot-scanning machine is always right.
“There are a couple of easy legislative fixes … things that would seem to me to make the whole thing more fair,” said Mulligan.
In past recount cases, Hallsor said, the issue was about “how the recount would take place and not whether it would take place.” The winning candidate either conceded to the recount or didn’t take a position.
Phelps Bondaroff objected to the recount on the basis it wasn’t warranted. He said the law is clear that a recount should only be conducted if there are sufficient reasons for doing so and in this case the judge said there wasn’t.
“Holding a recount without sufficient reason would not only be an expensive and time consuming exercise, but would undermine public confidence in our voting system,” said Phelps Bondaroff. “Saanich employs incredibly reliable voting machines.”
Hallsor said once his client decided he wanted a recount he had only 48 hours to pull together an application and it was “impossible with the timeline we faced” to find an expert on voting machines to give evidence on the voting tabulator machine’s margin of error.
Saanich’s Automated Vote Counting System Authorization and Procedures Bylaw, adopted in June, was also a challenge, he said.
The Local Government Act allows municipalities using voting tabulators in elections to, through a new bylaw, replace recount rules for hand counts with rules more suited to vote-counting machines.
The Saanich bylaw suggests in a recount “all voted ballots, except for spoiled ballots, will be re-inserted in the appropriate vote tabulators under the supervision of the chief election officer,” said Hallsor.
“The effect of it is that you can’t have a recount where any human looks at the ballots, and we must be ruled by what the machine decides,” said Hall sor. Hallsor said the bylaw usurps common law by finding “the machine is essentially infallible.”
The evidence in court was that the machines are programmed to reject ballots with an X or a check, and that it will reject any ballot if an insufficient amount of a ballot circle is filled in, said Hallsor.
“I argued that a person (a judge ultimately) should look at the ballots and determine voter intent when the result is so close,” said Hallsor.
Mulligan also believes the relevant section of the Local Government Act bylaw should be amended to consider voter intention.
However, Matthew Nefstead, of Lyons Law representing Phelps Bondaroff, said voters are carefully instructed as to how to fill out their paper ballots to have them accepted by the scanning machine.
Automated voting machines are incredibly accurate, said Nefstead, and a hand recount introduces the possibility of human error. No evidence was presented in court to prove the margin of error, if any, said Nefstead.
If a ballot is rejected by the machine for any reason, the voter is given a choice to complete a new ballot.
If instead the voter decides to submit their defective ballot anyway, that’s their choice, he argues.
If, for example, a person votes for too many council candidates, what’s called an “over-vote,” and the voter is made aware and chooses to submit it anyway, the voter’s council vote will be invalidated but their mayoral and school board votes — if filled in correctly — will still be counted, Nefstead explained.
In another example, Sharma argued that ballots should be examined by hand to determine if, among other things, any of the ballots included personally identifiable information about the voter.
In an election with hand-counted ballots, the Local Government Act says that if a person wrote their name on the ballot, for example, the ballot would be disqualified. The Saanich bylaw allows machines to accept them because a machine can’t be biased.
If a hand count is done, said Nefstead, that person who was led to believe their vote was accepted by the machine on election day would have it later discounted if a hand vote were done.
“The 50 people who chose to submit their ballots despite their over-votes clearly did so intentionally, and counting their ballots when they had been informed they would not be counted also undermines voter intention,” Neftead said in an email.
Saanich chief electoral officer Angila Bains in her affidavit submitted Oct. 24 said that under her supervision each election official appointed underwent training.
All 30 automated vote tabulators were tested on Sept. 26, 2022, she said. Bains estimated a recount would require at least 60 election officials and take two to three days for a machine recount and five days for an in-person hand count.
Phelps Bondaroff said he’s grateful for all of the votes and support he received “and am looking forward to working with my council colleagues to improve Saanich.”
