Establishing a Legal Framework for E-voting in Canada
Any introduction of technology into the voting process is accompanied by a substantial number of risks, both known and unforeseeable, that have the potential to affect the results of an election. It is the responsibility of governments looking to implement electronic voting to take appropriate legislative measures to mitigate and prepare for factors that may affect the results of an election, as well as ensuring that the public can have confidence in the processes used.
The higher the level of risk, the more processes ought to be implemented to maintain the public's confidence in the electoral system and ensure that the effective right to vote is not displaced.
For our purposes, the notion of functional equivalence is useful during the comparative exercises in order to understand the sufficiency of procedures and ensure that adopting technology does not unnecessarily introduce new risks without corresponding benefits. Electronic options must be compared with the benefits and risks of their traditional equivalents, rather than against an abstract standard of perfection.
The legal framework for an e-voting test project or widespread usage can have a variety of formats. Standards, rules and other normative requirements may be contained in legislation, subordinate regulations or direction by Elections Canada contained in policy statements, manuals, requests for proposals from vendors and other contractual documents. As public confidence is always a crucial dimension of any voting system, we recommend that the electoral authority ensure that principles, standards and procedures are provided with reasonable transparency and clarity. The electoral authority should also take pains to ensure that innovations are explained to Canadians and that voters who actually use any new system are comfortable with using it and are not confused and misled.
Currently, the Canada Elections Act may be sufficient to authorize Internet voting in a test environment in a by-election or general election. Other jurisdictions have launched e-voting tests with minimal legislative changes. On the other hand, if some controversial decisions are made, such as those restricting voter participation in e-voting or reacting to a breakdown, there may be advantages to having Parliament legislate procedures and at least the minimal requirements. The stakes would be higher, and the potential for breakdown and tampering greater, if and when e-voting were to be used for a general election. Preferably, the Canada Elections Act would be amended to include at least the minimum standards, contingency plans and offences. The content of the legislation would, it is hoped, benefit from the deliberation and practical experience acquired through earlier pilot projects, as well as through looking at comparable jurisdictions and the principles of functional equivalence.
The ideal legal framework appears to be one that demands broad consultation and contemplates risks, problems and threats. It will require strong security measures and testing, but it also outlines clear steps to take if worst-case scenarios occur. It will offer clear legislative standards, but allow the electoral authority considerable flexibility to adopt the most advanced technology.
The legal framework for e-voting should deliver facilitated accessibility and reasonable accommodation, ensure voters are treated fairly and their choices remain secret, and guarantee accurate and prompt results. To do so, the framework should ensure there are comprehensible and transparent processes, a high level of risk assessment and security, adequate remedial contingencies, legislative certainty for all major electoral tasks and effective and independent oversight. This should be done in a way that can justify the costs and efficient use of resources.
Ultimately, whether we use paper or computers to vote, the goal should be to ensure as many Canadians vote as possible, while providing the public confidence that the voting system will perform as Canada's democratic tradition requires.