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Elections Ontario decides to violate the law – refuses to inform voters of right to decline their ballot in its election ads

Democracy Watch requested in January that all voter information inform voters of this right – 4 months later Elections Ontario claims it doesn’t have time to do any TV, radio or print ads about right to decline ballot

Parties and some interest groups produce new TV and radio ads almost daily during elections – Elections Ontario’s decision is negligent

Tuesday, May 15, 2018

OTTAWA – Today, Democracy Watch announced that Elections Ontario has finally, after four months, decided that it will once again, for the third election in a row, negligently violate Ontario’s election law by failing to fully inform voters that they have the right to decline their ballot (i.e. vote “none of the above”) in all forms of voter education it does leading during the election campaign period. As a result, Democracy Watch is considering its legal options, including going to court to challenge the decision.

Although it has added mention of the right to its website and a few of its publications, Elections Ontario is refusing to mention the right to decline your ballot in its TV, radio and print advertising (which reach the widest audience).

After Democracy Watch sent a letter on January 8th to Chief Electoral Officer (CEO) Greg Essensa requesting that Elections Ontario inform voters about their legal right to decline their ballot in the likely more than $4.5 million it will spend on advertising and communications with voters leading up to Ontario’s provincial election day on June 7th, Elections Ontario responded on January 12th and finally changed three pages of its website by adding information about the right to decline your ballot.

However, Elections Ontario refused to respond to a follow-up email Democracy Watch sent to it that same day asking Elections Ontario to commit to correct other website pages, and do other other voter education, including advertising, about this right.

Democracy Watch’s lawyers from Ross McBride LLP, Andrew Spurgeon and Wade Poziomka, sent another letter to CEO Essensa on March 6th. After that, Elections Ontario posted a few Twitter images and Facebook photos about the right to decline your ballot (but not nearly as many as it has posted about other voter rights topics). See details in this report.

Elections Ontario’s March 15th response letter finally committed that the right to decline your ballot would be mentioned in the pamphlet it has just sent out to voters across Ontario before election day. It is mentioned in the pamphlet but only in one line buried at the end of a section that is about voting for candidates even though another page of the pamphlet had blank space in which a special section about declining your ballot could have been placed (similar to the special sections on “Student Voting” and “Hospital Voting”).

Elections Ontario continues to refuse to commit to mention the right in its TV, radio and print ads, and in some other voter education material (including on a key page on its website that misleads voters by claiming your only option at a poll is to mark your ballot for a candidate).

Elections Ontario is very questionably claiming it doesn’t have time now (even though Democracy Watch filed its request in January) to produce even one TV, radio or print ad mentioning the right to decline your ballot. Yet parties and third parties produce new ads throughout election campaigns, sometimes daily.

In addition to its letter in January, Democracy Watch sent similar letters to CEO Essensa in 2011 (after it was consulted by Elections Ontario concerning voter education), and again in 2014. So Elections Ontario is completely unjustified in claiming that it hasn’t had enough time to produce any TV and radio ads about the right to decline your ballot – it’s had seven years!

“Democracy Watch called on Elections Ontario in January to comply with Ontario elections law and inform voters in all its advertising and voter education information that they have the legal right to vote none of the above by declining their ballot in the provincial election,” said Duff Conacher, Co-founder of Democracy Watch. “Four months later, Elections Ontario has decided to continue to negligently violate Ontario’s election law by making the baseless claim that they don’t have enough time to produce even one TV or radio ad that will mention this right.”

“Political parties and some interest groups produce new TV and radio ads almost daily during election campaigns, so Elections Ontario is simply lying when it says it can’t produce even one TV or radio ad about the right to decline your ballot, especially given that Democracy Watch asked it to produce such ads in 2011 and 2014,” said Conacher. “No one should believe Elections Ontario when it claims its goal is to lower barriers to voting in Ontario elections when it won’t even fully inform voters about one of their fundamental voting rights.”

“Some voters may not support any party that has a candidate in their riding or may not support any of the parties’ platforms, and they have the right to be informed by Elections Ontario that they have the right to vote for ‘none of the above’ by declining their ballot,” said Conacher. “Ontario’s politicians gave voters the right to decline their ballot in 1975, and for more than 40 years Elections Ontario has negligently and illegally refused to inform voters that they have this right.”

Ontario voters have the legal right under section 53 of Ontario’s Election Act to decline their ballot (i.e. vote “none of the above”) and have it counted separately from a vote for a candidate or a spoiled ballot. This right has existed in the law since 1975. However, Elections Ontario has consistently failed to inform voters that they have this right in its communications to educate voters undertaken under subsection 114.1(2) and section 114.2 of the Election Act.

Despite Elections Ontario’s $4.5 million in advertising spending in 2011, voter turnout in the 2011 Ontario election was a record low 48.2% of eligible voters, the first time in history that turnout dropped below 50%. And despite Elections Ontario’s more than $4.8 million in ad spending in 2014, turnout in the 2014 election was the second-lowest ever at 51.3%. The 2007 turnout was only slightly better at 52.1%.

Democracy Watch has long called on the federal government, and every provincial and territorial government, to change their election laws (including the law for municipal elections in each jurisdiction) and add the right to vote “none of the above” and to give a reason to election and by-election ballots.

Democracy Watch has also long called on Elections Ontario, and all election agencies across Canada, to include two key messages in their voter education advertising and communications – the real reasons to vote:

  1. “You never know when your vote may count” — with examples from past elections, and from specific ridings in various elections, which show clearly that election results cannot be predicted in advance, and;
  2. “If you don’t vote, you don’t count” — making it clear that politicians don’t really care about you if you don’t vote because non-voters do not help them get elected or defeated.


Duff Conacher, Co-founder of Democracy Watch
Tel: 613-241-5179
Cell: 416-546-3443

Democracy Watch’s Democratic Voting System Campaign