Thursday, March 8, 2012

Robocalls: Electoral Fraud and Partisan Bickering

This has been a political scandal for the last few weeks, and I've been following it fairly closely.  It's getting a pretty significant response in the grassroots, with very highly charged responses at the partisan political level.

But there are a lot of misconceptions about what's going on, especially by partisans, judging from commentary on the news sites.  These fuel each other, and heat up the debate.  When a Liberal or NDP partisan supporter accuses Stephen Harper of stealing the election, for example, then Conservative partisan supporters will respond that there's no proof that Harper was involved nor that the election was actually stolen.  Which is true. This gets simplified, however, to "no proof", which then gets overapplied to become denials that there *was* electoral fraud in the first place, at which point the Liberal and NDP supporters stab back that the Conservatives are ignoring the abundant evidence to the contrary.

So let's clear this up a little bit, shall we?

What Happened?

The scope of what happened is still in question, as is exactly what happened where.  There are reports of misleading calls on or before election day, with both personal callers and 'robocalls' - i.e. automated messages - in many ridings nationwide.  The best-documented case is Guelph.

The Guelph Robocalls

In Guelph, large numbers of people received automated calls claiming to be from Elections Canada, and advising that their polling station had changed.  Because these calls were automated, the message often ended up on voicemail.  Some people have systems that forward voicemail to email, making it easy to archive, so while we have a great many reports of people *receiving* these calls, we also have established cases in which we even have the full recordings.  This allows confirmation of several things:  The caller did indeed purport to be from Elections Canada, and did indeed provide an address for a polling station quite unambiguously which was not only not the correct polling station, but not even a polling station.  Combined with Elections Canada's confirmation that they don't make calls at all (and in fact don't have voters' phone numbers), it becomes quite evident that whomever was behind these calls had nefarious intent.  Falsely purporting to be from Elections Canada makes this clearly criminal, and clearly a voter suppression tactic.

It appears that it was non-Conservative supporters who were targeted by these calls, which permits an inference that the motives of the guilty person or persons was to assist the Conservative candidate, Marty Burke.

Elections Canada has been investigating this case, and has come a long way.  The calls have been traced to an Edmonton based automated call centre called Racknine.  Racknine is an automated operation which permits people to upload their own messages and call lists, and calls large numbers of people quite inexpensively.  It is also known to be used frequently by Conservatives, and apparently none of the other parties.  (Indeed, there is currently more controversy about Racknine:  We know that Racknine made other calls on behalf of the Marty Burke, but Elections Canada noted that this candidate's election financing declarations did not indicate any payments at all made to Racknine.  The campaign manager recently explained that he has a Racknine account, that he paid for the calls himself and was compensated by the campaign via an honorarium.)

Whomever called Racknine did so from a disposable cell phone, with an account registered to "Pierre Poutine" who lives on "Separatist Street" in Joliette, Quebec.  Interestingly, there is a restaurant called "Pierre's Poutine" in Guelph.

The water is further muddied by the fact that, right after the scandal broke, Michael Sona immediately resigned from his job as assistant to Conservative MP Eve Adams.  Sona was part of Burke's campaign staff, and was accused during the campaign of 'grabbing' a ballot box at an advance polling station, declaring that the poll itself was 'illegal'.  (It was true that the Returning Officer hadn't dotted all his i's and crossed his t's in respect of getting approval for the poll, but Elections Canada later concluded that this didn't ultimately affect the validity of the poll.)  However, notwithstanding his timely resignation and Conservative intimations of the prospect of a lone 'rogue' supporter, Sona maintains that he had nothing to do with the robocalls.

Racknine is also suing NDP MP Pat Martin for his statements comparing them to GroupAction, suggesting that they were a party to the fraud.

Guelph may be the best documented, but not the only one.


This one is key.  The Liberal candidate lost to the Conservative candidate by a whopping 18 votes, so irregularities could be a very big deal in this context.

Elections Canada is now investigating reports of automated calls, similar to the ones in Guelph, which are reported to have occurred in Nipissing-Timiskaming, including people being sent 20 km out of their way.  (Remember, this is Northern Ontario:  Low population density, the riding is absolutely huge.  However, the size of the riding isn't necessarily determinative.  There are reports coming out of Winnipeg of voters being sent some distance outside of the riding they lived in.)

There are widespread reports from across the country, however, of other misleading calls, as well, including in Nipissing-Timiskaming.

Responsive Marketing Group

RMG is a Thunder Bay outgoing call centre with live operators, which is believed to have been used by the Conservative national campaign and known to have been used by at least 97 Conservative candidate campaigns.  Some former employees of RMG have gone public with statements that they were tasked with making "Get Out The Vote" ("GOTV") style calls to tell people where their polling station was, and were stunned by the consistent negative responses they received, essentially suggesting that the polling stations being identified were a long way away, and these employees began to theorize at the time that the information they were giving out was false.  It also sounds like some of these callers were identifying themselves as being from Elections Canada, but it isn't entirely clear whether this was part of the script, or an oversimplification by front-line workers trying to make their own jobs easier in light of the negative responses.

This is one of the areas where it gets muddy.  The Conservative explanation for this is that Elections Canada did make eleventh-hour changes to 127 polling stations (incidentally, I've found numbers for the 2008 election suggesting that the total number of polling stations is about 18000), and that the Tories do call people for GOTV purposes to tell them where their polling station is (apparently, contrary to Elections Canada's requests).  With Elections Canada changing some, yes, mistakes could happen.

But there are a few things that aren't clear here.  Who were they calling?  Because the complaints are coming from people who don't support the Tories, so it doesn't make sense that large numbers of them would be getting GOTV calls from Tories.  (The Conservatives have a very sophisticated database, CIMS, which they use to keep track of constituents nationwide who support them...and those who don't.)

It's also clear that some of the misleading phone calls complained of occurred in ridings in which Elections Canada made no changes, though it isn't yet clear to me whether or not there is an established connection to RMG in these cases.

So it isn't clear whether or not these calls evidence intentional voter suppression and electoral fraud.  It isn't clear how many of the calls complained of across the country came from RMG.  It isn't clear if there may be another source of misleading calls, as well.

The "Hi, I'm calling for the Liberals, how may I annoy you today?" calls

Whether or not this one qualifies as illegal is questionable, but if it isn't illegal, it's certainly right up there in terms of immorality.  There are widespread reports, which began to surface during the election campaign itself, of calls purporting to be on behalf of Liberals asking for money.  Joe Volpe's campaign started to get complaints rolling in, which perplexed them.  Repeat calls to Jewish households on the Sabbath?  Calls in the middle of the night?  What's going on here?

The calls apparently came from a North Dakota area code, but phone numbers can apparently be spoofed.  Recently, Conservative Dean Del Mastro accused the Liberals of using a North Dakota based marketing company, but it turns out that he was looking at a Canadian company with a slightly different name from one in North Dakota.

These are calls intended to alienate voters from the Liberals, and I think could be marginally criminal because of the fraudulent agency claims.  At a minimum, I would argue that the actions are tortious - in the context of an election campaign, something that would otherwise be only a tort might go further.

There are reports from 2008 in B.C. which some think may have been a Pilot Project for misleading robocalls, too.

Saanich-Gulf Islands

This riding started to get national attention in 2011 when Elizabeth May announced that she would run there, but it was a pretty close race between the Liberals and the Conservatives in 2008.  The NDP candidate in 2008, Julian West, dropped out of the race, but too late to get his name off the ballot.

The evening before the election, at dinnertime, constituents started receiving robocalls urging them to vote for Mr. West.

Sorry, what?  Who is telling voters to vote for a candidate who has withdrawn his candidacy?  Obviously not the candidate himself - why would he spend more money on his aborted campaign?  It's a vote-splitting tactic.

And it may have worked:  Mr. West, despite having withdrawn his candidacy, received 3,667 votes.  The Conservative Candidate, Gary Lunn, defeated the Liberal candidate by a margin of 2,625 votes.

So we're left with a widespread range of deceptive tactics, some criminal, some not, some which may or may not be.  Some of the latter groups are tied to the Conservatives, others are not.  The others are nonetheless widely believed to have been perpetrated by people who are at least connected to the Conservatives, or in furtherance of the Conservative agenda.

(This is also without considering other irregularities - some voters who showed up on election day and found their names scratched off the voter's list, and voters alleged to have been able to vote without showing proper identification, as is alleged in the very close riding of Etobicoke Centre.)


When Conservatives and their supporters say that there is no proof tying them to the unlawful calls, they are absolutely right.  When they criticize the Liberals and NDP for making allegations without proof, they're kind of right, too, though kind of hypocritical, because at the same time some of their number are pointing the finger squarely at the Liberals and blaming them, and in the past have not hesitated to promote unproven (and in many cases untrue) allegations against the Liberals.  (On some of the newspaper comments sections even in the last few days, I've seen Conservative supporters maligning Liberals for peddling political influence in exchange for free pizza.)

"Innocent until proven guilty" is a mantra we're hearing a lot these days.  As a lawyer, it's one that I'm fully behind:  We should not punish somebody for something he hasn't been proven to have done.  At the same time, I think that those who automatically accept the Conservative denials of involvement are equally jumping to conclusions.  "Suspect until cleared" is a sound principle of investigation.  Canadian society is just playing armchair juror over this issue, as is common.

There are sound reasons to suspect that the perpetrators here are at least involved with the Conservative Party.  The motive appears to have been the promotion of the Conservative agenda, and it is difficult to imagine that somebody could have meaningfully pulled it off without access to a database like CIMS.  The connections to organizations with Tory ties suggest more than a passing familiarity with Conservative campaigning, while the widespread nature of the allegations (as well as the slight differences in MO) suggest against it being a lone rogue campaign worker.  If the national campaign wasn't directly involved, it seems probable that it was at least a common strategy somehow marketed to the local campaigns, and that there were some members of the national campaign who were at least aware of what was going on.

As John McCallum acknowledged, there's no "smoking gun" pointing to Harper, but strong inferential evidence that Conservatives are responsible.  (I've seen a quotation from Harper in context of the sponsorship scandal arguing that, regardless of his individual role in it, Chretien ought to take responsibility for the actions of people acting under his government's authority and immediately resign.  Seems kind of appropriate.)

Also of note is that, two years ago, the Manning Centre, an organization with very close Conservative ties (the President and CEO is none other than Reform Party founder Preston Manning), put on a two day clinic for campaign strategies, which is reported (reliably, including by John Fryer, and by another individual with whom I went to law school) to have included detailed strategies for voter suppression, including effective use of robocalls.

What were the consequences?

Some left wing partisans are saying that the Conservatives stole the election.  Some right wing partisans are arguing that it had absolutely no effect on the election results.  I think the truth is somewhere in the middle.

The ridings alleged to have been affected were largely 'battleground' ridings.  Some of them were very close races indeed, and small voter suppression effects could have impacted the results in these ridings.  Thus, when McCallum estimated that he thinks the Liberals may have lost 3 seats due to voter suppression tactics, that sounds plausible to me.

That isn't enough to change the overall outcome of the election.  We'd still be looking at a Conservative majority government.

So What's the Big Deal?

Aye, there's the rub.

Conservatives are arguing that the fraud, if anything, was 'isolated', and that the opposition is making a big deal out of essentially nothing.

To me, that is the absolute wrong answer.  I am prepared to presume, on the basis of "innocent until proven guilty", that the CPC and the members of their caucus have no legal responsibility for any fraudulent conduct.  That whomever perpetrated the fraud is not meaningfully connected to anyone in any position of authority.

Regardless, electoral fraud is very serious.  Even without evidence of political malfeasance or actual impact on the election results, the integrity of our electoral process is one which must be vigourously defended and safeguarded.  Any action which threatens its integrity must be dealt with seriously.

In that light, the Conservatives' Chretien-esque attempts to sweep it under the rug (even aside from being inherently suspicious) send a very specific message to such perpetrators:  Nice work; we've got your back.  To fail to treat it as the serious offence it is suggests to partisan supporters that this is an acceptable way of trying to help your party of choice win.

Sending this message is one that will generate a lasting harm to the integrity of our democracy.  If that becomes the accepted way of campaigning, then it will make our historical election campaigns, with all their mudslinging and attack ads, look like exercises of civility.

What Should We Do About It?

There are those calling for a new general election.  That's outside the realm of reasonable responses to this.

There are those calling for by-elections in affected ridings.  I think that, if we limit the by-elections to the ones in which the result may have changed, that's reasonable.  Mind you, the mechanisms for forcing such by-elections are convoluted and complicated...but I think that the winning MPs would be prudent to do so themselves in such cases.  In Nipissing-Timiskaming, for example, once MP Jay Aspin can be shown any reliable evidence of voter suppression tactics, then the only ethical action on his part would be to resign his seat to force a new by-election.  (Note well that I am not necessarily implying that he would be behind such voter suppression, but regardless of who cheated, that is simply not how any respectable competitor wants to win.  So of course he would run again, but the point is that, if he wins, he should be able to show that he won fairly.)

There are those calling for a judicial inquiry.  I don't know if we're quite at that point yet, but I definitely think that there needs to be some sort of open and transparent process to find the truth.  Elections Canada is investigating, and that's definitely a plus, but I think that our continued confidence in the integrity of both our democracy and our political parties requires more openness than is possible for an Elections Canada investigation.

It goes without saying that those who can be proven to be legally responsible must be rooted out and dealt with harshly.  But we need to recognize in broader terms that this is seriously concerning.  If party officials and politicians were actually involved, then that is alarming.  But even if they aren't, even if this is the action of a lone rogue supporter, then we should be deeply concerned about the prospect that such a lone supporter would be capable of suppressing people's votes.  Whichever is the case, we need to get to the bottom of it and figure out how to prevent it from happening in the future.

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