ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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WHY DID THE MCGUINTY GOVERNMENT PROPOSE BANNING NETWORK-LINKED ACCESSIBLE VOTING TECHNOLOGY LIKE TELEPHONE AND INTERNET VOTING?

April 19, 2010

SUMMARY

As now proposed, Bill 231 would take the extraordinary, if not unprecedented step of banning an entire category of voting technology that could make voting for persons with disabilities far more accessible. Voters with disabilities should be able to vote independently and in private, and to verify their choice. The Legislature should not simply ban any class of access technology.

Bill 231 proposes to ban any voting technology that is connected to a network. That would forbid telephone voting or internet voting, both of which can be more accessible to voters with disabilities.

Bill 231 proposes this ban in favour of a more expensive form of access technology, a stand-alone accessible voting machine that Elections Ontario has tested. Yet the Government argues against deploying those stand-alone accessible voting machines in every polling station, because of their higher cost. Instead, the Government’s Bill 231 would only require Elections Ontario to have one voting machine in each electoral riding. That gives voters with disabilities far less voting accessibility than would the lower-cost accessible access technology that Bill 231 would categorically ban, such as telephone voting or internet voting.

On April 14, 2010 Liberal MPP Greg Sorbara, speaking at the Standing Committee on the Legislative Assembly, set the correct standard that this legislation should meet. Ironically, he did this while he was arguing against an NDP amendment that he incorrectly thought would require in every polling station a more expensive stand-alone accessibility voting machine, like the one Elections Ontario has tested. He stated: “I don't think really the NDP is arguing for expenditures of those sorts when there are a variety of other methods to ensure absolute equivalent accessibility from this entire community without those sorts of expenditures.”

We agree that the standard to which voters with disabilities are entitled is “absolute equivalent accessibility” for the entire population of voters with disabilities. Regrettably, Bill 231, both as originally worded, and as revised by Liberal Party amendments passed to date, does not come anywhere near this standard. Voters without disabilities can vote privately and independently in any polling station near their home, and can verify their choice. In sharp contrast, even under Bill 231, voters with disabilities, who cannot mark their own paper ballot, will have only one place in their entire riding where they can go to vote privately and independently and where they can verify their choice. Telephone voting and internet voting would together give most voters with disabilities absolute equivalent accessibility.

The Government also conceded at the April 14, 2010 meeting of the Standing Committee that it could be possible to vote via the technology that Bill 231 forbids, at least some time in the future. Mr. Sorbara said: “I don't dispute what my friend says about the possibility in the future of using electronic communications. “

The upshot of last week’s Standing Committee proceedings on this issue is as follows: The Conservative and New Democratic Parties are on record opposing the Government’s proposed legal ban on voting technology that is connected to a network. Both opposition parties are on record in support of setting a legislative deadline by which voters with disabilities will have access to comparable opportunities for voting independently and in private, and for verifying their choices, as voters without disabilities have, without pre-judging in the bill which technology needs to be used to achieve this. In contrast, the McGuinty Government is on record opposing that position. However the McGuinty Government announced at the April 14, 2010 Standing Committee meeting that it will walk on an amendment to let Elections Ontario study these new forms of voting technology, and report to the public on the results. Their proposed amendment has not yet been made public. (See the excerpt from the Standing Committee proceedings, below.)

The entire issue of new voting technology is expected to be debated and voted on at the Wednesday, April 21, 2010 meeting of the Standing Committee on the Legislative Assembly, occurring between noon and 3 pm.

To read the entire April 14, 2010 proceedings of the Standing Committee on the Legislative Assembly on Bill 231.

THE GOVERNMENT’S REASONS FOR BANNING NETWORK-CONNECTED ACCESSIBLE VOTING TECHNOLOGY, AND OUR RESPONSES

Why would the Ontario Government propose the peculiar and counterproductive step of banning access technology in a law, even if it is proven reliable, safe and secure? We gained insight into this during the April 14, 2010 meeting of the Legislature’s Standing Committee on the Legislative Assembly, when it debated and voted on proposed amendments to Bill 231. Below we list the key points the Government made, to explain why it opposed the amendments proposed by the opposition Conservative Party and New Democratic Party. We commend the NDP and Conservatives for proposing amendments that would lift Bill 231’s ban on access technologies such as telephone and internet voting.

The Government largely spoke on this issue through Liberal MPP Greg Sorbara. He also served as the Chair of the Legislature’s Select Committee on Elections, whose 2009 report is the basis of Bill 231. Mr. Sorbara gave several reasons to explain why the majority Liberals voted against NDP and Conservative amendments that would lift Bill 231’s proposed ban on accessible voting technology connected to a network. We do not list these in the order they were voiced at the Standing Committee:

1. CHARTER OF RIGHTS CONCERNS

The Government appears to justify its ban on network-connected accessible voting technology, such as telephone or internet voting, in part because it thinks this might violate the Charter of Rights, if it is only available to voters with disabilities. Mr. Sorbara stated in opposition to a proposed Conservative amendment:

a) “The point that my friend brings up really asks the question: Should we move towards Internet and telephone voting in Ontario? I just don't think that we can say - and I think under the Charter we might not be able to say, "We will move in that direction for certain segments of the population, that part of the community that has issues with respect to accessibility. I think if you're going down that road, you've got to go down that road.

I think the fact is that we decided early on, and it remains the government policy, that as a general matter, we are not moving from a system of voting with polling places, paper ballots and attending at a polling place, subject to what we've changed with special ballots and mobile polls and that sort of stuff, that we are not going to move towards electronic voting.

It may be, down the road, that some future government says, "You know what? This business of actually going to a polling place - that's pretty outdated. We could all sit at our computers," or "Excuse me, I'm just going to vote on my BlackBerry and cast my vote for a federal election that's going on today." Maybe we're going to do that, but we just decided at the outset that we are not going to, for now, go down that road. I believe that if we're not going down that road, we can't go down that road, under the Charter, for the community that has accessibility issues: the disabled community.

However, all of that being said, we are going to create authority to look at alternative technologies, and within that context, an examination of that may take place in the future. The fact, however, is, and let's be frank, if we were going to actually move down that road, this bill would have to come back before the Legislature again. That may be welcome.

For me - maybe I'm just a traditionalist - I like the idea that we do not vote at home on the Internet, that we actually have to go out and cast a ballot. Maybe I'm archaic, but I believe that we should stick with this tradition, at least within this review of the act and the work that we've done."

b) “My problem is that if we're going down that road - I haven't done the Charter of Rights and Freedoms examination - it's all or nothing. If person A can vote at home on a computer, person B should have that right as well. There's a great debate to have there and there are a lot of issues. I'm not sure I have the answers, and I'm not sure where I would land.”

OUR RESPONSE

First and foremost, we have never insisted that network-connected voting technology only be available for voters with disabilities. We would be happy if these methods of voting were available to the entire public. We have suggested that the general voting public would likely welcome this innovation. It would likely increase voter turnout.

We also disagree with the Government’s suggestion that the Charter of Rights would forbid this method of voting, if adopted only as an accommodation for voters with disabilities. It is well-known that to accommodate the needs of persons with disabilities, it is at times necessary to treat them differently from others in the interests of achieving equality of opportunity for full participation. The Charter of Rights may well require that different treatment. It does not forbid it.

Using the Government’s own approach, right now there is a method of voting used, that only allows some voters to vote privately and independently, and to verify their choice, namely, the paper ballot. If the Government believed that it is wrong under the Charter of Rights to use a voting process that was for practical purposes only available to some voters, then it should support the opposition amendments that provide for more widely-accessible alternative voting procedures.

2. GOVERNMENT PRE-DECIDED AGAINST CONSIDERING THIS OPTION FROM THE OUTSET

Mr. Sorbara stated that in the current review of the Elections Act which resulted in Bill 231 it decided from the outset not to even consider the options of network connected voting such as internet voting. He said at the April 14, 2010 meeting:

“The issue for us in the design here was that an investigation of Internet, interconnected electronic voting was not going to be the subject of this review of the Election Act.

Now, you may have a view on that and you may have said, "Well, you know what? When we started the select committee process, it should have been, 'Let's have a look down that road.'" We made a decision as a government not to look down that road and the issue and the amendment that you're bringing up simply puts that into legislative form, but it's done within the context of issues relating to accessibility and accessibility equipment.”

OUR RESPONSE

This shows that the proposed Bill 231 ban on network-connected voting technology, such as telephone voting or internet voting, does not come from some thorough Government study of this option, either by Elections Ontario, or by the 2008-2009 work of the Legislature’s Select Committee on Elections. Rather the Government pre-decided from the outset of this entire process not even to consider these options.

The Government cannot justify banning an entire class of access technologies for voters with disabilities on the grounds that it just decided not even to consider them.

3. VOTING SHOULD OCCUR AT THE POLLING STATION

In a passage set out above, Mr. Sorbara emphasized the importance of the tradition of going to a polling station to vote. He stated:

“For me - maybe I'm just a traditionalist - I like the idea that we do not vote at home on the Internet, that we actually have to go out and cast a ballot. Maybe I'm archaic, but I believe that we should stick with this tradition, at least within this review of the act and the work that we've done."

OUR RESPONSE

It is unfair to hold against the options of telephone or internet voting the claim that it is departure from the tradition of voting at the polling station, for two reasons.

First, Bill 231 has already proposed to abolish the tradition of requiring voters to vote at the polling station. It guarantees to every voter the right to use a printed mail-in “special ballot” if they wish. Under Bill 231, no Ontario voter need ever go to a polling station. Mr. Sorbara elsewhere recognized at this meeting that the mail-in ballot is an exception to the traditional requirement of going to a polling station.

Regrettably, however, Bill 231 does not require that mail-in ballot to be presented in a form that allows a voter with a disability to independently and private mark it, and to verify their choice before mailing it in. Hence the ongoing need for accessible voting technology.

Second, it is possible to offer options like telephone voting at the polling station. It would be possible for Bill 231 to be amended to require voters to come to the polls, but to let them vote by phone at the poll.

4. NOT APPROPRIATE TO CONSIDER THIS AMENDMENT NOW

The Government suggested at the Standing Committee that this issue is not properly addressed by an amendment to Bill 231 at the stage of clause-by-clause debate. Mr. Sorbara said:

“I think this is a subject for a good debate. Unfortunately, I don't think you can have that debate simply by an amendment in clause-by-clause after second reading of a bill that has had over a year of consideration.

Notwithstanding all of that, as my friend says, we are going to be bringing forward, walking in an amendment that will allow for that kind of preliminary work to be done by the Chief Electoral Officer, and report to the people and certainly to this Legislature. So I hope that that will satisfy some of the concerns.”

OUR RESPONSE

The very purpose of public hearings on a bill is for the public, including voters with disabilities, to raise concerns with a bill, and to propose amendments that MPPs can then debate in clause-by-clause debate. There is no reason why this topic doesn’t fit well into that process.

Moreover, as described above, Mr. Sorbara conceded that the study in this area did not include any exploration of telephone or internet voting. Yet Bill 231 would ban this access technology. If it is appropriate for the Legislature to consider banning it, it is appropriate for the Legislature to consider not banning it.

5. GOVERNMENT’S MISUNDERSTANDING OF OPPOSITION AMENDMENT

Mr. Sorbara argued that a proposed NDP amendment would not only allow telephone voting and internet voting, but would also force an expensive $15,000 accessible voting machine in every one of some 15,000 polling stations, at an excessive cost to the taxpayer. He stated:

“I do, however, point out that, once again, the proposal is to have these sorts of machines in - I'm quoting number 3 in subsection (1.1) - "every polling place" in Ontario. You do the math: about 15,000 polling places at about $15,000 per machine. By my math, that's, I think, $225 million in new equipment. I don't think really the NDP is arguing for expenditures of those sorts when there are a variety of other methods to ensure absolute equivalent accessibility from this entire community without those sorts of expenditures.”

OUR RESPONSE

The NDP’s proposed amendment, drawn from the AODA Alliance’s brief, does not require an expensive accessible voting machine in every polling station. It would give the Government the option of going that route, or of adopting far lower-cost alternative voting technology that would give voters with disabilities comparable access to independent, private voting, such as telephone or internet voting. If telephone or internet voting were adopted, there would be no need to have the Government’s expensive accessible voting machine in every polling station. The NDP amendment included this key passage:

"3. The direction shall require that,

"i. the option of using accessible voting equipment is made available at every polling place, or

"ii. options that are comparable to accessible voting equipment are made available for all electors with disabilities at every polling place, which options allow for voters to vote independently and privately and to verify their choices and which may include voting by means of the telephone or the Internet."

As well, the Government’s reference to the cost of $15,000 per machine for its own proposed technology appears to be quite substantially overstated. The accessible part of those machines only costs $5,000, according to information that Elections Ontario provided to us. The rest of that $15,000 figure include $6,000 for automated vote-counting equipment (not needed for disability accessibility) and an unexplained figure of $4,000 per machine for training.

6. WHAT THE GOVERNMENT PLANS TO PROPOSE

Here is what Government MPPs said at the April 14, 2010 Standing Committee meeting on what it proposes to bring forward to address the issue of telephone voting and internet voting:

a) “Mr. David Zimmer: Let me just ameliorate some of the concerns on this issue by letting everybody know that the government will be bringing a walk-on amendment later in these proceedings. The effect of that amendment is a proposal to direct the Chief Electoral Officer to conduct a review of alternative voting technologies and to make public a report of his review in advance of the 2015 election, giving meaningful opportunity for people to act and reflect and have input on that report.

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So we're mindful of these issues that you've raised and we're going to review them and treat them in a mature and thoughtful manner on a going-forward basis.

The Chair (Mr. Bas Balkissoon): Mr. Sorbara?

Mr. Greg Sorbara: I think probably Mr. Chudleigh might want to go first.

Mr. Ted Chudleigh: If you're going to bring on an amendment of this nature, your amendment, I believe, if I get the sense of your amendment, would be prevented from being actioned in any way by the Chief Electoral Officer because of the clause that I'm proposing to remove. It prohibits electronic and telephone equipment.

Interjection.

Mr. David Zimmer: Mr. Sorbara will respond to that point.

Mr. Greg Sorbara: No, in fact, the thrust of the amendment will allow for the examination, notwithstanding this provision.”

b) “Notwithstanding all of that, as my friend says, we are going to be bringing forward, walking in an amendment that will allow for that kind of preliminary work to be done by the Chief Electoral Officer, and report to the people and certainly to this Legislature. So I hope that that will satisfy some of the concerns.”

OUR RESPONSE

This signals slight progress. However it does not go anywhere near as far as we proposed in our brief to the Standing Committee, as reflected in the proposed opposition amendments to Bill 231.