Uncertainty surrounds election delay in Newfoundland and Labrador

Newfoundland and Labrador is entering uncharted legal territory as the province’s chief electoral officer has called for Saturday’s provincial election to be delayed in 18 ridings because of a sudden COVID-19 surge.

Some key facts and points of contention about the unprecedented move:

1. The way forward has no real rules.

The province’s Elections Act does not include provisions for suspending the vote in this kind of situation.

Prof. Michael Pal, a University of Ottawa law professor who specializes in elections and constitutional law, says the province’s chief electoral officer has broad powers, but they have never been used in this manner.

“Any time you have an election, you want to really follow the statute, because every decision is potentially controversial or has political implications,” Pal said in an interview Thursday.

“It would be better if there was a clear provision in the Elections Act in terms of what to do.”

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2. The Crown has a role to play.

The province’s lieutenant-governor would likely get involved because the ultimate authority over elections rests with the Crown.

That’s why the premier and his cabinet are expected to advise the lieutenant-governor to withdraw the 18 election writs and have them reissued for a later election date, Pal says.

By late Thursday, however, there was no indication what role, if any, the cabinet would play.

3. There’s confusion over who is in charge.

Before chief electoral officer Bruce Chaulk issued a statement Thursday announcing the delays, he distributed a letter to the party leaders suggesting the province’s chief medical officer should impose a delay to ensure public health.

That didn’t happen, and the chief medical officer later said she was given legal advice that she does not have the authority to stop an election.

Chaulk also said the party leaders could approach the lieutenant-governor to find a constitutionally sound way to postpone polling day.

Again, there was no movement on that point Thursday.

Regardless of how the change is made, Pal said it would be wise for the incumbent Liberals, who held a minority of the seats before the legislature was dissolved, to first consult with the other parties.

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4. The federal government has rules for this kind of predicament.

The federal Elections Act provides guidance on delaying federal elections, but that power has never been used in the 100-year history of Elections Canada.

Spokeswoman Natasha Gauthier said Canada’s chief electoral officer has the power to recommend changing the day of the election, but it’s up to the prime minister and cabinet to make the final decision.

The federal legislation sets a very high bar for delaying votes by specifically stating elections must go ahead unless they are “impracticable.”

That means conditions are such that holding a vote would be practically impossible, as would be the case if a natural disaster made it impossible for voters to get to the polls.

Still, that authority was not used during the 2019 election when blizzards in Manitoba caused power outages and forced evacuations, upending election logistics in many ridings.

“That did not meet the threshold for impracticability,” Gauthier said in an interview.

It’s also worth noting that Newfoundland and Labrador is the fourth province to hold an election during the COVID-19 pandemic.

New Brunswick had only three active cases when voters went to the polls on Sept. 14, but Saskatchewan was reporting 650 active infections when its vote was held Oct. 26, and British Columbia had slightly more than 2,000 cases on voting day, which was Oct. 24. Newfoundland and Labrador’s active case count rose to 210 Thursday.

– By Michael MacDonald in Halifax.

This report by The Canadian Press was first published Feb. 11, 2021.