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Recount ability was overlooked when Calgary approved election tabulator use

Calgary city councillors were made aware in 2018 that a hand recount would not be done when electronic tabulators were used in a municipal vote.

Despite this knowledge, the election bylaw that allowed for the use of electronic tabulators was carried unanimously at that time. Only one question or comment around a potential recount was made during debate.

Three years later, it’s become a rallying point for changes to the Local Authorities Elections Act (LAEA), after a judicial recount in Calgary’s Ward 4 was denied by a judge in late November 2021. Ward 4 challenger DJ Kelly had submitted the claim after Sean Chu won the Oct. 18 seat by 100 votes.

The judge ruled the recount wasn’t possible because of rules set out in the LAEA. Section 84-3 nullifies Sections 103 to 115. Those sections outline rules around a judicial recount.

Elections Calgary had also refused a recount request made shortly after the vote.

Muddying matters further is the ethics situation involving Coun. Sean Chu. Multiple stories have come forward about his past sexual interactions with a 16-year-old girl while he was a Calgary police officer in the 1990s.

Chu has refused to resign.

A University of Calgary political scientist said that Calgary shouldn’t use the tabulators again until legislation is sorted out.

How Calgary got to this point takes us to the summer of 2018.

Back in the summer of 2018

After ballot shortages, long lines and website crashes, along with delayed results in the 2017 municipal election, the City of Calgary undertook a review of election procedures.

A July 2018 auditor’s report exposed deficiencies in the City’s current election process. One of those areas was results reporting.

“In future elections, the City Clerk/Returning Officer may consider moving to an automated count process, for example utilizing ballot tabulators to automatically count ballots,” the auditor’s report read.

In late June 2018, however, before the auditor’s report, council was asked to make a decision on the use of tabulators for the then-upcoming Olympics plebiscite.  In that meeting, then-Mayor Naheed Nenshi said two items – including the use of tabulators – needed to be approved before the end of June. According to the LAEA, the bylaw had to be approved by June 30.

When asked by then-Ward 3 Coun. Jyoti Gondek if these were small changes, the City’s Returning Officer Laura Kennedy said, “tabulators are not a small change.”

Question about tabulator recounts

Later in that discussion, Mayor Nenshi asked Kennedy a question around ballot count with tabulators.

From Calgary city council (transcription):

Mayor Nenshi: Are the paper ballots ever counted?

Chief Returning Officer Laura Kennedy: The paper ballots are counted as they go through the tabulator. If there is a recount required, then we would use the paper ballots which would run through a recalibrated machine to verify it that way.  

So, there’s never a…

Nenshi: There’s never a hand count.

Kennedy: Never a hand count.

Though it’s never specified in that meeting why there’s no hand count of these ballots, it is described in provincial legislation. Section 98-2 (c) of the LAEA states that in the event of a recount, “proceed to count the ballots contained in (the ballot box) in the same manner as the deputy presiding at the voting station is directed to do.”

Further, Section 84-3 of the LAEA states that a judicial recount cannot be done when a vote is done by electronic tabulation. 

The Nov. 13, 2018 Olympic vote took place without any major hitches.

Later, a February 2020 follow-up audit showed that implementation of changes resulted in a much smoother operation for the Olympic plebiscite. That included a quick turnaround on the vote count.  Of note, there was no desire or need for a recount after the Olympic vote.

“Further, Elections and Census shared their plans to continue to improve the voter experience for the upcoming 2021 Election, and based on this follow-up we have high confidence in their ability to deliver on these plans, and we have no recommendations for additional improvement,” the follow-up audit report read.

Legislation needs changing: Mayor Gondek

There were reporting delays due to transmission issues in the Ward 4 race on the 2021 election night. Two polls, one in Winston Heights and the other in Dalhousie, directly impacted the outcome in Ward 4.

The result was a 52-vote lead for Sean Chu. After the final results were tabulated from the remaining polls, that margin stretched to 100 votes.

A recount was immediately requested, reviewed, and ultimately denied. 

The DJ Kelly campaign then sought the judicial recount. That was also denied based on the aforementioned legislation.

Shortly after that turn of events (Nov. 25, 2021), newly elected Mayor Jyoti Gondek said the provincial legislation on this must change.

“The changes in legislation are something that we’ve been calling for, for quite some time,” she said.

“The Local Authorities Election Act needs to redo. We need a strong set of eyes on it to make sure that it’s keeping up with the times, so that’s job one.”

When asked if there should have been another method to double-check the ballots, the mayor said that’s what happens when legislation isn’t modernized over time.

Section 84-3

Kelly told LiveWire Calgary he believes the sticking point of all this comes down to Section 84-3.

Section 84-3 states: Sections 75, 85 and 103 to 115 (judicial recounts) do not apply when the votes of the electors are taken by any of the means provided for in subsection (1).

Subsection 1 is the part of the legislation that allows the use of electronic vote tabulators.

“What that means is if a local authority decides to use a machine in either the vote collection or the vote tabulation, the rules around how to run an advanced poll, how to count ballots, those things no longer apply,” he said.

Kelly said the legislation is very detailed in how a hand recount is conducted in a typical paper ballot election. Everything from sealing the ballot boxes to reopening, who gets to be there, etcetera.

“It says if you use the tabulator none of those rules apply. And it doesn’t substitute any other rules.”

“It makes no sense to me that if you choose to count the ballots one way versus another way, then the ability to double-check the election is just gone.”

Andrew Brouwer, Deputy City Clerk said he believes it does make sense to calculate it in the same way as the ballots were cast. That’s why they have the tabulator recount rules in place.

“If you’re going to then insert a human set of eyes, which is up for interpretation of that DRO (deputy returning officer) to count each of the ballots, it’s a different standard,” he said.

“You’re applying a different set of eyes to it. So, they have to interpret the way those markings work. They’re two separate sets of election count processes.”

Brouwer said in a typical hand count election, it’s up to the DRO to make the distinction between markings. They have to interpret voter intent.  In this election, it was left up to the machine.

Machine accuracy in reporting

Electronic, optical scan tabulators have been in widespread use for more than 20 years. In the United States, the 2002 Help America Vote Act ushered in the electronic age of voting.

Optical scan tabulators are still the most common, though there are Direct Recording Electronic (DRE) voting machines that allow the voter to press a button or touchscreen to record a vote into a computer’s memory.

All systems are highly regulated and put through a rigorous test process in the United States. But, they’re not infallible.

They’re occasionally susceptible to hardware or software malfunction. This could include scanner issues, power problems or mark-reading problems. Brouwer said in the recent election the issues they experienced most involved residue on the rollers.  If there’s debris, he said, it won’t function optimally. In those cases, the auxiliary slot is used to collect the ballots to be scanned.

Problems directly related to the Ward 4 election are outlined here.

However, oftentimes the tabulator issues are the result of human error themselves.

Candidate lists can be entered incorrectly. The machine may not be calibrated properly. The auxiliary box, which catches ballots not read by the scanner, may not be properly placed and therefore could result in misplaced ballots. The tabulator box itself may be built incorrectly.

Machines used in elections do go through a pre-election Logic and Accuracy (L&A) test procedure. This is a test run of the machines to make sure they’re calculating ballots properly. 

The City of Calgary ran L&A testing prior to the 2021 municipal election. When asked, they said a post-election L&A was not done on the machines.

Whether it’s a hand-counted paper ballot or the optical scan tabulators, they’re all trying to determine the voter intent.

The role of scrutineers

When Mayor Nenshi asked about tabulator recounts back in 2018, he was unsure of the impact on scrutineers. He said you really have to trust the software.

“The scrutineer’s role is to try and figure out whether spoiled ballots are intentional or if they were errors,” the mayor said at the time.

“You’re suggesting you don’t need that because the voter themselves can see how their vote is being tabulated.”

Kennedy said that scrutineers would be observing the act of voting. In a hand-count election, the scrutineer can view the ballots to determine or question intention.

Brouwer later told LiveWire Calgary that they engage scrutineers so they understand the election process. He said they invited questions from the scrutineers on the L&A process and the scrutineer’s role in observing.

“We made the role of the scrutineer quite transparent to the candidates in this election,” he said.

Brouwer said scrutineers couldn’t view the actual vote itself as it went into the tabulator because it could spoil the secrecy of the ballot.

“That’s fundamental to the election,” he said.

If there are tabulator malfunctions, that’s where the role of the scrutineer comes into play, Brouwer said. In the case of reading errors, the scrutineer can request a replacement ballot be filled out by the voter. 

“The scrutineers are positioned in the voting place so that they can observe the overall process,” he said.

Post-election audits

Some US states have allowed for randomized post-election audits. That involves either a hand recount of ballots or the use of a third-party scanning system, completely unrelated to the original scanner manufacturer.

An audit isn’t triggered by any sort of margin. It’s done on random machines to test the efficacy of the electronic count.  It’s done in public view, but not done with political motivations. Again, it’s done to ensure the equipment worked properly and the election outcome was correct.

Audits can lead to full recounts, if necessary.

Alberta’s law doesn’t specifically allow for the paper ballot count of the machine outcome.

Section 102 of the LAEA does allow for the inspection of ballots by order of a judge. But, section 103, which talks about the judicial recount, is nullified by Section 84-3, as mentioned before, because it’s an electronic vote count system.

If you want to take it a step further, Kelly said you can pursue a judicial review. But there’s a hitch to all of this: You have to suggest some sort of illegal activity has been done to warrant the review.

“We don’t want to accuse anyone of wrongdoing,” he said.

“We’re just saying 52 (votes) is really close. But the way the law is actually written is it only considers the fact that somebody did something horrible, or something evil.

“We’re just asking you to check those (ballots) to make sure nothing was done wrong.”

An audit of sorts is available in Alberta. It would be a review of the tabulator ticker tape to ensure that ballot numbers matched vote numbers.

The pressure of the Olympic decision

In a 2021 year-end interview, Mayor Jyoti Gondek said that back in 2018, so many Olympic-related decisions came at them very quickly.  Whether it was the way the plebiscite was to be done or the information that needed to be consumed about the event before making a decision.

She referenced one situation where they received a massive information package on Halloween night. It had to be reviewed and voted on the next day.

“I think there was a lot of things that happened at council far too quickly for us to make really solid, empirical decisions,” she said.

“I cannot recall what I heard at that time about hand recounts. I just can’t remember.”

Coun. Gian-Carlo Carra, who was a councillor at the time, said he didn’t recall if council made the connection between the use of tabulators and the lack of a hand recount. At the time, they were focused on ensuring an efficient election outcome.

Carra felt that if those ramifications were spelled out in chambers, they may have made a different decision.

“If it was, we would have been like, ‘whoa, whoa, whoa, whoa, whoa,'” he said.

While she can’t speak to what information was presented at the time, University of Calgary political scientist Lisa Young said that when tabulator use was brought back after the Olympics plebiscite for use in the 2021 municipal election, city council should have been reminded of the absence of a recount.

“The context of possibly wanting to recount is different if you’re in the context of an election versus a plebiscite,” Young said.

Tedious, time-consuming, inefficient – but necessary, said Young

While Andrew Brouwer had earlier suggested that applying a hand count to a machine tabulated result would put it through a different calculation standard, Young said it’s necessary.

“For democracy to work, we need the public to trust that the votes are all counted and that they’re counted correctly,” she said.

While the people who understand the tabulator, how it works and have researched its accuracy might argue it’s more accurate than humans, Young said people still want to know the machine is right.

“Regular members of the public might need to see that humans are double-checking,” she said.

Random people don’t do the recounts. They’re judicially supervised. If the counts don’t match, then you count them again with a different group of people, Young said.

“It’s that ability to have humans physically check this that I think would give the public a sense of confidence in the legitimacy of the result,” she said.

“Even though it’s tedious and time-consuming, and inefficient, we have to have that option, where we can ensure that candidates are satisfied that the ballots were counted correctly. And so, then the public can be satisfied.”

In an age where new conspiracy theories rise and take hold daily, Young said it’s critical to preserve the sanctity of elections.

Brouwer said there is discussion among provincial election administrators on vote tabulator standards. It’s something already done in the United States.

“The standards help to ensure consistency and enhance transparency and perceived trust among stakeholders, including candidates and parties as well as voters,” he said.

Wait for legislative changes before using them again

DJ Kelly is no longer pursuing any action on the Oct. 18 vote. He could go the route of a judicial review, but that requires proof of malfeasance.

Now he’s advocating for changes to the LAEA to update the rules around recounts and the use of electronic tabulators.

“The Local Authorities Election Act has a lot of problems with it,” Kelly said.

“What I went through during the election is a whole new section that nobody had ever really paid attention to, because it has never really come to come to fruition before.”

Young agreed. The legislation needs to be modernized to respond to challenges like the one in Calgary’s recent election.  A request to Alberta Municipal Affairs on a possible review of the LAEA went unanswered.

“A candidate who questions whether the results were inaccurate needs to have the right to ask for the votes to be counted in a way that is observable,” she said.

To that end, with the experience of this election, the city should suspend the use of tabulators until legislation is changed, according to Young.

“If a candidate does not have the option of applying for a judicial recount, then tabulators should not be used,” she said.

Review underway

Brouwer said they are in the process of reviewing and documenting lessons learned. They are aware of audit practices in other jurisdictions. If there is a review of the LAEA, Elections Calgary wishes to be part of it.

“We will also engage Council and the public in the election model for the next General Election and legislative considerations, as we have done in the past,” Brouwer wrote in an email.

This was a challenging election. A new system was conveyed to the public in the middle of a pandemic, he said.

Calgary has roughly three years to review and potentially change how it conducts local elections. Much of that will be dictated by potential changes to the province’s LAEA. This time, councillors have clearer knowledge of how the legislation impacts potential outcomes when tabulators are used.

Either way, this experience will influence the way Calgary votes in 2025.