Election Act voting requirements for mail in ballots, and third party advertising rules

Because the British Columbia provincial election was called suddenly none of the political parties have candidates nominated in all ridings. As a result of COVID-19, many people have also requested mail-in ballots.

Without candidates having been determined yet, the mail-in ballots being distributed simply have a blank space to write in the name of the candidate you wish to vote for.

When asked about the voting procedure, the premier incorrectly suggested that people could write in various things, including the name the party leader they wished to vote for. Unfortunately, unless the party leader happens to be a candidate in your riding, writing in the name of the party leader will result in a spoiled ballot.

Section 123 of the Election Act does permit, on a write-in ballot, someone to indicate either the name of the candidate or the political party, they wish to vote for. The name of the party leader is not, however, a permitted alternative.

The Election Act does expressly provides for write-in ballots to be counted even where the name of a candidate or political party is misspelled or abbreviated, as long as the intention of the voter is clear.

On regular ballots, which include the names of the candidates, a selection should be made using a cross or tick mark opposite the name of the candidate you wish to vote for.

Other marks should not be made on a ballot because, if they could reasonably be used to identify a voter, the ballot would be rejected.

Also discussed on the show are provisions of the Elections Act that regulate third-party advertising.

Limits on how much a candidate can spend would not be meaningful if other people could spend money on an election without limit.

Unfortunately, the rules respecting third-party advertising are so restrictive as to have forced a pub owner from Kelowna to register so as to avoid fines for having a message printed at the bottom of receipts. The message reads “Oct. 24 vote that f*cker out!”

While the message wouldn’t cost the pub owner anything to print, the Election Act would require a fair market value to be assigned and would then result in a fine of twice this amount should the pub owner not register and comply with a host of regulator requirements.


Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.


An automated transcript of the show:


Legally Speaking Oct 1 2020

Adam Stirling [00:00:00] It is time for Legally Speaking on CFAX 1070, joining us, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. How are you doing?

Michael T. Mulligan [00:00:07] I’m doing great. Thanks so much for having me.

Adam Stirling [00:00:09] We had a story that we covered earlier on the show today, about the premier himself misunderstanding temporarily the rules with respect to write-in balloting and how that works. This, of course, is prescribed within the statute of which you have reviewed. Yes.

Michael T. Mulligan [00:00:25] Yes, indeed. I must say, I had a I think we could best be described as a legal spit take. When I heard the, listening to you earlier today with the premier’s description of how somebody might fill in a write-in ballot in an inaccurate way. So, I think that’s really important and you’re quite right. It had actually set out in the Election Act and there are some important principles for people to know about, both in terms of how you would complete a regular ballot versus how you could complete a write-in ballot. And there are rules set out in the Election Act, which would have the potential to invalidate either of those things. And so, I think that really requires some clear explanation for people, particularly anyone who might have been misled by the advice that was broadcast earlier today from the premier. And so, starting with the write-in ballots, and those are the ones that are being distributed now. If you ask for a mail-in ballot, the problem is that because of how quickly this election was called. There were not candidates nominated in all of the ridings and I don’t think for any of the three major political parties have candidates registered in all of the writings. That process is still open and so presumably they’ll all get that done before the election occurs, but it hasn’t yet occurred. And so, when somebody writes in and asks for a mail-in ballot, well, they can’t send them a mail-in ballot with the candidate listed on it because they don’t yet exist.

Adam Stirling [00:02:04] One would think temporal causality must play a role as always.

Michael T. Mulligan [00:02:07] That causes a problem and so, well, where does that leave people? Well, they’re left with the blank spot. And what can you write in there if you want your ballot to actually count? Well, what you cannot do is you cannot write in the name of a party leader unless that leader is the candidate in the riding in which you are voting. Right. That was a misleading part of the information that was provided or broadcast, this wording from the premier.

Adam Stirling [00:02:36] Yes.

Michael T. Mulligan [00:02:38] You cannot do that unless, of course, the leader of the party is the candidate you’re voting for in the riding. Like if you’re in Premier Horgan’s riding, you could write his name in. Of course, that will be just fine. Now, the other thing to be aware of is that you are permitted by operation of Section 91 and the Opry Section 91 and 123 of the Election Act. The other thing which you would be permitted to do is you are permitted to with one of these write-in ballots. These are the mail-in ones you are permitted to write in the name of the registered political party you wish to vote for, and that will also be effective. And so that part is permitted. You could write in either that you could write in the name of the candidate you wish to vote for, or you can write in the political party. So, if somebody wanted to vote for the Green Party, they could write in Green Party. And indeed, the Election Act even provides for this. If there is somebody who makes a mistake and uses a misspelling of a name or an abbreviation, but it clearly indicates the intention of the voter, it will still count. So, don’t worry if you have misspelled somebody’s name, don’t be tossing and turning at night. That’s still going to count. And furthermore, your ballot wouldn’t be invalidated if somebody wanted to, for example, vote for the British Columbia Liberal Party and they wrote in liberal something of that sort. Right. As long as it’s clear what party they were intending to vote for. Just don’t write in the name of the party leader. You must write in on one of these mail-in, blank ballots, where you have a spot, name of the candidate, or you could write in the name of the party. Now, a few other things to remember, though.

Adam Stirling [00:04:30] mhmm.

Michael T. Mulligan [00:04:30] Do not do that if you’re voting using a regular ballot. Like if you’re going into the polls with a mask on and voting with a regular ballot, do not do something like write in the name of the political party you wish to vote for because that may result in your vote being invalid. And the reason for that is that you are not permitted to mark your ballot in a way that could identify you as a voter. That’s not permitted.

Adam Stirling [00:05:01] Yes.

Michael T. Mulligan [00:05:02] Like, the clearest example of that would be if you wrote your name on it, for example.

Adam Stirling [00:05:05] Yes.

Michael T. Mulligan [00:05:05] That ballot will not count. And I participated in one of these judicial recounts federally a number of years ago now. And so, I had a chance to see all of the various kinds of examples of the odd things people wind up doing with their ballots. People do odd things like writing numbers one, two, three, or drawing little symbols or all kinds of things. And the theory behind not allowing identifying marks or names or things written on ballots is to avoid the intimidation of voters.

Adam Stirling [00:05:42] Yes.

Michael T. Mulligan [00:05:43] And I’m not sure how common that would be today’s, you know, the day and age. But you can imagine, let’s say an employer said to all their employees, you better get in and vote for so-and-so and if you don’t, you’re fired. You I’ll know what you voted for them give you better have a star on the corner of your ballot. And if I don’t see that star right.

Adam Stirling [00:06:03] Yes.

Michael T. Mulligan [00:06:03] You know, we’re going to have a scrutineer there. You’re fired, right?

Adam Stirling [00:06:05] Yes. And this is also the for the reason that you are not permitted to photograph a marked ballot at a polling station because that would create evidence that you could use to satisfy someone extorting you.

Michael T. Mulligan [00:06:15] Yes. That’s not allowed either. You don’t show up there with a camera. Now, interestingly, there is an express exception for the write-in ballots, which is this, it says: The ballot, this is the reason why a ballot must be rejected as mandatory, so “if the ballot is uniquely marked or otherwise uniquely dealt with in such a manner that the voter could reasonably be identified other than is necessary for the purpose of voting by write-in ballot.” And so that does not mean you write your name on the thing. But what it would mean is, for example, you would not have it invalidated because somebody might say, well, I can identify that handwriting or I could identify, you know, your printing. And you’ve written in, you know, NDP or Green or whatever you’ve written in your spot. And so that’s designed to prevent a ballot from being rejected on the basis of notable handwriting, for example.

Adam Stirling [00:07:09] Interesting.

Michael T. Mulligan [00:07:10] And so that’s important for people to know. So if you’re voting with a only when you’re voting for one of these blank mail-in ballots, you would be permitted to write the name of the party or the name of the candidate you wish to vote for. Just don’t write the leaders name in unless the leader is a candidate in your writing. And if you go in to vote using a regular ballot at a polling station, you’re permitted to by virtue of the act you could put a cross in the blank spot. Right. A tick work is also expressly permitted by the Provincial Election Act or indeed another kind of mark in that spot, which would clearly indicate the intention of the voter subject to the problem if it’s a potentially uniquely identifying mark. And so the strong advice would be if you go in to vote with a regular ballot, just put an X in the spot next in, the blank spot next to whatever it is you want to vote for, don’t write things, names in there, don’t rank them, don’t cross people out. I mean, we did this a number of years ago. I saw all manner of things you wouldn’t believe. You know, people were, you know, putting an exclamation point in one, you know, filling in another circle completely. What is this? You really like number two? But…

Adam Stirling [00:08:27] Perhaps it’s notational shorthand for the purposes of making a decision.

Michael T. Mulligan [00:08:31] Yeah, that’s right. You can see the mental process, unlike when you’re doing your math exam in grade 12, don’t show your work. Just indicate who you want to vote for.

Adam Stirling [00:08:41] Now, I’m wondering if you can help me of whether or not we understand the purpose of the provisions with a write in ballot and the leaders name not being sufficient. I can understand why, we would allow a party name to be used, because that clearly conveys the overall intention of the voter, irrespective of the riding they find themselves in. But I would also think that each of the party leaders is also a unique identifier for the party, and yet that is precluded as being dispositive in establishing a person’s intent. Do we know why?

Michael T. Mulligan [00:09:11] Well, I guess, you know, all I can say is that’s what the Election Act says

Adam Stirling [00:09:16] Okay

Michael T. Mulligan [00:09:17] I mean, it’s an interesting thing that even writing in the name of the party would be an acceptable thing. There has been in the past debates, including in British Columbia, this is going back many decades. One of the things which has previously been debated is whether party identification should be listed on a ballot at all.

Adam Stirling [00:09:37] Yeah.

Michael T. Mulligan [00:09:37] And we do have that now, but we have not always had that. It used to be in British Columbia that you would only see the names of the candidates, not their party affiliation. And indeed, there is an argument that we should not have the party affiliation on there, and that argument is that it gives the parties greater control over the candidates or MLA’s eventually. Because you can say to them, look, if you don’t vote in the legislature in the way I am telling you to vote, as the leader, you’re not going to run as a fill in the blank NDP candidate next time.

Adam Stirling [00:10:16] Yes, yes

Michael T. Mulligan [00:10:18] And you’re never going to get elected and if you don’t have the party affiliation written on the ballot, it eliminates some of the power that a political party would have to control MLA’s. And so the argument would go, well, you shouldn’t have that on the ballot, so that because it would permit greater independent thought by MLA’s and independent voting in accordance with their own judgement or the judgement of their constituents. And I must say in that regard, it is kind of remarkable when you see or hear the rhetoric surrounding the calling of the current election.

Adam Stirling [00:10:59] Yes.

Michael T. Mulligan [00:10:59] It’s talked about in terms of the premier desiring certainty over how votes are going to go in the legislature.

Adam Stirling [00:11:07] Yes.

Michael T. Mulligan [00:11:08] And I must say, the only reason you’re having any certainty in terms of how votes are going is the premier is by virtue of your capacity to control how your MLA’s are voting. Because, of course, if the MLA ‘s were voting in the legislature in an independent fashion, taking into account their own judgements and, you know, the interests of their own constituents and so forth, you would not have sort of a trained field exercise with, you know, exactly every government MLA’s standing up on, right.

Adam Stirling [00:11:43] Yes.

Michael T. Mulligan [00:11:44] As called upon. You would have a circumstance which would look much more like what you would see in the United States, for example, where you if you look at votes in the U.S. Senate or in the House of Representatives, you would often see votes which would go along party lines, but absolutely not always. And sometimes on sort of matters of principle or whatever it might be, or strong interest to somebody’s own constituency, their elected representatives are much more likely to vote in a way that’s not consistent with their party affiliation. And some of that comes from by virtue of the fact that the party leadership there doesn’t have the same capacity to just decide, sorry, you’re not running as a Liberal again or sorry, you’re not running as another NDP member again and you’re not going to be listed on the ballot in that way and therefore, you’re going to be out. In the U.S. you’ve got sort of an institutionalized state run primary system whereby if somebody was a popular candidate in a particular jurisdiction, they’re not beholden to the leader of the their party they might be affiliated with to be allowed to run again on behalf of that party. There would be potentially a primary vote, but that’s up to the voters, not up to the leader of the party.

Adam Stirling [00:13:06] Yes.

Michael T. Mulligan [00:13:06] So in Canada, we have just much greater control exercised by the party leadership over how MLA’s or MP’s are voting. And some of that is traced back to the by the fact that we list the party affiliation on the ballots. And so the fact that the Election Act in British Columbia now has gone from at one point not allowing party affiliations on ballots at all to now at least with these mail-in blank ones that are being sent out to write in only the party affiliation. And, you know, holy smokes.

Adam Stirling [00:13:45] Yes.

Michael T. Mulligan [00:13:45] That’s just sort of one more step in terms of transferring sort of control over how these people are going to behave from the interests of their constituents or their own judgement to the will of the party. Because even if you might be a very popular person, if people can vote by simply writing in the name of a political party, if you step out of line, your chance of getting elected again might look pretty grim. And that is why when you watch votes in the legislature here, they are virtually always along party lines. And that is why you can even have this discourse about, you know, the possibility of certainty in the legislature if the one-party winds up with the majority, even a one or two seats.

Adam Stirling [00:14:41] Yes.

Michael T. Mulligan [00:14:41] That would not be so if you didn’t have some of those what appear to be relatively subtle things. But in reality, things which permit parties to exercise much greater control over what MLA’s are doing.

Adam Stirling [00:14:56] Michael Mulligan with Mulligan Defence Lawyers, we will continue Legally Speaking right after this break.

[00:15:01] COMMERCIAL.

Adam Stirling [00:15:01] Back on the air here, Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers, Michael, we have 7 minutes and 35 seconds left in this segment today, and we have the opportunity to cover a number of different topics. Where would we like to go next?

Michael T. Mulligan [00:15:15] Well, I think probably the carry on with the election theme, which is on everyone’s mind. I think the story that came out of Kelowna yesterday I think would be worth talking about. And that’s a story that also involves the Election Act in British Columbia. The factual background of this thing is that the owner of a pub up in Kelowna has been printing at the bottom of his till receipts for customers, a message which says, Oct, 24, vote that F, star, C, K, E, R, O, U, T, two exclamation points. And so, somebody here.

Adam Stirling [00:15:59] Oh dear

Michael T. Mulligan [00:16:00] So somebody complained, that this constituted third party advertising during the course of an election campaign and complained that the pub owner had failed to register as a third-party advertiser. And that actually prompted Elections BC to get in touch with the pub owner to ask that he register as a result of printing these messages at the bottom of his till receipt.

Adam Stirling [00:16:33] hmm.

Michael T. Mulligan [00:16:33] And so that brings me to the Election Act again. And, well, what is what are they talking about here? Well, in British Columbia, we’ve got limits on how much political parties are allowed to spend on an election so that you just don’t have rich people buying the outcome of the thing. Maybe that that theory was prior to Michael Bloomberg’s efforts in the United States, where he spent some a billion dollars or something.

Adam Stirling [00:17:01] indeed.

Michael T. Mulligan [00:17:01] win, I think only American Samoa. So maybe the theory that you could just buy the election is that is over overrated.

Adam Stirling [00:17:09] Quite so.

Michael T. Mulligan [00:17:10] so in any case, we do have these limits and the limits on what somebody could spend would be pretty meaningless if you could just have your friend go and spend some unlimited amount of money, I guess, touting how great you are or how terrible your opponent is. Right.

Adam Stirling [00:17:25] Yes.

Michael T. Mulligan [00:17:25] And so in order to make those work, you have to have limits on what third parties are allowed to spend on advertising.

Adam Stirling [00:17:33] Mhmm.

Michael T. Mulligan [00:17:34] But I should say they’re pretty broad and the penalty is pretty draconian. And so, you need to be aware of these things even if you are doing something like taping a message on your till receipt. And so, what happens is that they’ve defined the concept of campaign period, election advertising, very broadly. The Act defines it as “transmitting to the public, by any means during an election campaign of an advertising messages, message that promotes, reposes directly or indirectly, a registered political party, the election of a candidate, including an advertising message that takes a position on an issue with which the registered political party or candidate is associated.” But then it has some exceptions, things like radio or television programs, letters, debates, editorials, or things like individual postings or online, that kind of thing.

Adam Stirling [00:18:27] Yes

Michael T. Mulligan [00:18:27] Those are also exempted. Now, you might think, well, what you know, how could this message be anything at all? Obviously, nothing was spent here other than some ink on the person’s, you know, receipt machine. But the way the Election Act deals with that, is that if the person who’s providing something like that to assist a candidate or to resist against another candidate being elected, the fair market value of the advertising would have to be included.

Adam Stirling [00:18:59] Hmm

Michael T. Mulligan [00:19:00] And then and then there are limits on how much a third-party advertiser could spend.

Adam Stirling [00:19:04] Yes,.

Michael T. Mulligan [00:19:05] They are they’re permitted to spend only $3,000 if it has to do with a candidate in a specific electoral district or $150,000 if it is broader, right?

Adam Stirling [00:19:17] Yes.

Michael T. Mulligan [00:19:17] So interestingly here, the particular message type, though, seems to be F, star, C, K, E, R singular. So presumably the pub owner is referring to the candidate in that riding. And so, his limit would be $3,000 on that. If he perhaps put the plural in and he might be able to go for the $150,000 dollars.

Adam Stirling [00:19:39] This is why legal advice is worth so much, because that is a huge difference.

Michael T. Mulligan [00:19:44] Yeah. Don’t leave that S off, you’ll spend more. And then if you wish to do this kind of advertising, you have to register. If you don’t register your subject presumptively to a penalty of two times the value of the advertising and then if you do register, there are all these regulatory requirements. So, the pub owner is going to be filling out forms and reports for quite some time, I suspect. And then the act provides that if somebody spends more than what they’re permitted, the $3,000 or $150,000 dollars, they are presumptively then subject to a fine of up to, not up to, a fine of ten times the cost of the advertising subject to applying to a judge to ask that that be reduced. So, if somebody spent, you know, $160,000. Right. You know, a union or a large business or something,.

Adam Stirling [00:20:44] yeah.

Michael T. Mulligan [00:20:44] You know, they would be on the hook, presumably for one hundred thousand dollar fine if they crossed the line by ten thousand dollars multiplied by ten and get your chequebook out.

Adam Stirling [00:20:54] Ouch.

Michael T. Mulligan [00:20:55] And so, you know, the there are some pretty substantial and I think rather draconian penalties there. The other thing, which I think is perhaps more significant is just how much there is required there in terms of regulatory compliance, you know, a person has fill out all kinds of reports and forums and all of this stuff. I kid you not when this pub owner is going to be sitting there for hours completing, you know, forms and reports to avoid getting fined.

Adam Stirling [00:21:27] Yes.

Michael T. Mulligan [00:21:27] And so looking at all of this, it seems to me that we might want to, while, this is obviously well-intentioned, do something to temper temporary by perhaps putting some minimum threshold on when all of these things are going to be engaged.

Adam Stirling [00:21:44] Yes.

Michael T. Mulligan [00:21:44] And clearly, you don’t want somebody buying the election. But, you know, if you had somebody who wants to, you know, engage in something like this, that’s going to cost, almost nothing. Perhaps we should put some minimum threshold on it to avoid the regulatory burden. You wouldn’t want it to be a circumstance where you could get a thousand of your friends just started using that threshold. But if you said, for example, look, none of this regulation or, you know, completing or forms or registering, and so on is going to be required unless you spend more than, you know, pick some figure $250 or something. Right.

Adam Stirling [00:22:20] Yes.

Michael T. Mulligan [00:22:20] I think you could safely conclude that people weren’t going to buy the election for $250 worth of advertising. And you would eliminate the need for Elections BC to be clamping down on the, you know, pub owners of the world, that are trying to express their opinion on their receipts. That, to me, just seems like perhaps unnecessary, unnecessary regulation, even if the ultimate objective is a good one.

Adam Stirling [00:22:48] Indeed, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers during the second half of our second hour every Thursday. Michael. I will not be here next Thursday, but I assume that you will be. I’m taking a couple of long weekends in lieu of what would have been a continuous vacation because of the election campaign. But I will talk to you soon, my friend.

Michael T. Mulligan [00:23:05] Have a, have a great vacation. Look forward to it. Thanks very much.

Adam Stirling [00:23:08] Bye now.

Automatically Transcribed on October 1, 2020 – MULLIGAN DEFENCE LAWYERS