Whymarrh Whitby and Alison Coffin leave the law office of O'Dea Earle in downtown St. John's on April 12, 2021 following a press conference where they announced they were filing a constitutional challenge to the recent provincial election.Paul Daly/The Canadian Press
Newfoundland and Labrador’s New Democratic Party has filed a legal challenge to last month’s provincial election, alleging widespread irregularities with mail-in balloting and asking a judge to toss out the results.
The constitutional challenge comes after the pandemic-delayed vote saw one of the lowest turnouts ever in a Canadian provincial election. A COVID-19 outbreak forced the last-minute cancellation of all in-person voting, and just 48 per cent of eligible voters ended up casting a ballot.
In an application filed with the Newfoundland and Labrador Supreme Court in St. John’s on Monday afternoon, it’s alleged many voters were prevented from participating in the vote because the province’s elections agency badly mishandled the switch to mail-in balloting. The NDP also alleges hundreds of people were added to the voters list without requiring identification – raising concerns for the potential of election fraud.
“You can’t just ignore errors of this magnitude,” said Kyle Rees, a St. John’s lawyer and president of the provincial NDP. “There was such a powerful ignorance of both elections law and Charter rights during Newfoundland’s pandemic election that I don’t think the public can have confidence in the result.”
Andrew Furey’s Liberals were re-elected with a slim majority in the delayed election, winning 22 of the province’s 40 seats. The Progressive Conservatives won 13 seats, the NDP won two and three Independents were elected. A coronavirus outbreak lead to the cancellation of all in-person voting just 12 hours before the election was to be held Feb. 12, and the deadline for mailed ballots was extended multiple times until March 25.
The two applicants in the court challenge are Alison Coffin, Leader of the NDP, who lost her seat by a 53-vote margin, and St. John’s resident Whymarrh Whitby, who says he did not receive a mail-in ballot and was denied his right to vote.
The 45-page application names Elections Newfoundland and Labrador’s Chief Electoral Officer Bruce Chaulk as a respondent, claiming he “failed to discharge [his legal] duties in the manner required of him, most notably with respect to his duty to ensure that the election proceeded with fairness, impartiality, and in compliance with the [Elections] Act, and that [Mr. Chaulk] failed to act in good faith.” The NDP argues the head of Elections NL had no legal authority to extend the voting period.
The court filing includes a sworn affidavit from an Elections NL employee, Jordan Mulrooney, who says he was directed to add names to the voters list without confirming their identities. Mr. Mulrooney says “a large number” of voters applied for ballots by phone and were sent them without any proof of who those callers were or whether they were eligible to vote.
It also alleges Mr. Chaulk and members of his family took voting kits home, and that a number of requests for ballots appeared to have similar signatures or handwriting. Some voters were also able to cast, and have counted, ballots that they had printed themselves, according to the application.
One NDP scrutineer, in another affidavit, claimed she was prevented from observing the act of vote counting because of COVID-19 restrictions, and was not permitted to look at vote tallies or summaries.
“This information is so inflammatory, we felt we couldn’t just sit back and let it ride,” Mr. Rees said. “The election was carried out contrary to law, and it’s not like there was just one minor slip-up.”
The provincial election agency declined to comment. Mr. Chaulk has previously defended his actions, saying he was doing his best to facilitate an unprecedented election during a challenging outbreak.
“The Chief Electoral Officer will offer no comment on this matter while it is before the courts,” said Adrienne Luther, spokesperson for Elections NL.
Mr. Furey has insisted the vote was legitimate and says he intends to govern for the next four years. He declined to talk about the legal challenge.
“As this matter is before the court, the Premier cannot offer any comment on it at this time,” said Meghan McCabe, the Premier’s spokesperson.
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Greg Mercer