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AODA Alliance Calls on Elections Ontario to Provide Internet and Telephone Voting and More Than One Accessible Voting Machine Per Riding in the October 2011 Ontario Election

November 22, 2010

SUMMARY

On November 18, 2010, the AODA Alliance wrote Chief Electoral Officer Greg Essensa, who has lead responsibility for administering provincial elections in Ontario. For the October 2011 Ontario election, we ask him to exercise his authority under new amendments to the Election Act, to provide more than one accessible voting machine per riding, and to provide internet and telephone voting. We request this to overcome barriers facing voters with disabilities who cannot mark their own paper ballot and verify their choice. See this letter, below, and an earlier letter from the Chief Electoral Officer to the AODA Alliance on elections accessibility.

This is the most recent development in a campaign, lasting over a decade so far, to convince the Ontario Government to make elections in this province fully accessible to persons with disabilities.

MORE DETAILS

1. Background

Voters with disabilities are estimated to number at least 1 million in Ontario. They face too many kinds of barriers when trying to vote in an election. These can include inaccessible polling stations with barriers that impede people with mobility limitations, or a paper ballot that one cannot mark independently and in private if one has vision loss, dyslexia or certain other disabilities. The AODA Alliance and its predecessor, the Ontarians with Disabilities Act Committee, have waged a campaign for over a decade to get the Government and Elections Ontario (which runs Ontario elections) to remove and prevent such barriers.

At our request in the 2007 election, the McGuinty Government promised to develop an accessible elections action plan. Three years into its mandate, it has not done so, as far as we can tell.

Last December the McGuinty Government introduced Bill 231 into the Legislature. It was intended to modernize Ontario elections, including addressing disability accessibility problems. However, as originally drafted it gave voters with disabilities little if anything. It would not have made Ontario elections accessible in 2011 or ever.

Last winter, we sprang into action. We spearheaded a non-partisan campaign to get Bill 231 strengthened, to make Ontario elections fully accessible to voters with disabilities. We got strong support from the opposition Conservatives and the New Democratic Party. The Liberal Party was the least eager to make Bill 231’s disability accessibility provisions strong and effective. You can see all our efforts on this issue, including a Toronto Star editorial supporting us, and our presentation to a Standing Committee of the Ontario Legislature, all documented at:
http://www.aodaalliance.org/strong-effective-aoda/default.asp

The final version of Bill 231, passed last May, was somewhat improved as a result of our efforts. The Government made some amendments to strengthen its accessibility provisions. However the opposition Conservatives and NDP proposed a much stronger package of amendments at our request. The McGuinty Government used its majority in the Legislature to defeat the vast majority of opposition amendments that didn’t accord with the Government’s weaker accessibility agenda.

In its final form Bill 231 still contained serious flaws. For example, it continues to ban network-connected voting technology such as internet and telephone voting. It lets Elections Ontario experiment with these technologies in a by-election, but doesn’t require it to do so. It requires Elections Ontario to study alternative accessible voting technology, such as internet and telephone voting, and report back on it by June 30, 2013, an excessively long time. After 2011, Bill 231 lets Elections Ontario propose to a Committee of the Legislature that such alternative technology be used in a general election. If Elections Ontario does this, the Standing Committee can approve the use of that technology, after holding public hearings, but not until after the 2011 Ontario election.

All this means that Bill 231 takes the very troubling step of banning a form of accessible voting technology for the 2011 Ontario general election. It then puts in place an arduous process for possibly getting that ban lifted, some time after that.

For voters with disabilities in the 2011 Ontario election, Bill 231 only requires Elections Ontario to have one accessible voting machine per riding (that cannot be connected to a network).

We wrote to Elections Ontario back on May 3, 2010 as a follow-up to the passage of Bill 231. We urged Elections Ontario to act swiftly to promote full accessibility of elections, including prompt investigation of accessible technologies and internet voting. We asked Elections Ontario a series of specific questions about its plans for action on these issues. You can see that letter at:
http://www.aodaalliance.org/strong-effective-aoda/05032010.asp

2. New Developments

On June 25, 2010, Chief Electoral Officer Greg Essensa responded to our May 3, 2010 letter. His letter, set out below, describes some general plans for moving forward to make elections more accessible. However, it does not give detailed answers to a good proportion of the questions we set out in our May 3, 2010 letter.

This fall we learned that a U.S. company with experience operating accessible telephone and internet voting in the U.S. and other parts of the world was going to meet with Elections Ontario officials in Toronto on November 8, 2010. That company offered to meet us as well, after it finished its meeting with Elections Ontario.

Thus, on November 8, 2010, a contingent from the disability community, including the AODA Alliance, met with a team from the “Everyone Counts” organization. You can see more about that company at: http://www.everyonecounts.com/

We invited the three political parties in the Ontario Legislature, as well as the Accessibility Directorate of Ontario, to send representatives. Each was represented at a very informative and thoroughly non-partisan meeting. We were impressed by the demonstration of accessible network-connected voting technology. The representatives of Everyone Counts explained that it is possible to use their voting technology from home via telephone or via the internet, and to load their technology on a conventional laptop or desktop computer, for accessible use in every polling station. We have made it clear throughout that we are not advocating for any one company when we explore such efforts at prompting election accessibility.

It appeared to us that the promising technology which was shown to us cannot now be used in Ontario elections, due to the restrictive terms of Bill 231. This led us after this November 8, 2010 meeting, to take another look at Bill 231, to see if there was away around these unfair legislative barriers to accessibility.

We took an especially close look at the new power that Bill 231 gives the Chief Electoral Officer to issue directions to override almost any restriction in the Election Act. We decided to write the Chief Electoral Officer, to ask him to use that new exempting power to override Bill 231’s unfair restrictions on the deployment of different options for accessible voting in the October 2011 provincial election.

Our November 18, 2010 letter to Chief Electoral Officer Greg Essensa, making this request, is set out below. In it we ask the Chief Electoral Officer to issue a direction, so that Elections Ontario can take two additional steps to promote grater accessibility for voters with disabilities: First we ask him to authorize internet and telephone voting in the October 2011 election, as an accessible alternative to the option of voting from home with a mail-in “Special Ballot.” The mail-in ballot is inaccessible to those who can’t independently mark their own print ballot. Second, we ask him to direct that more than one accessible voting machine be deployed per riding, using less expensive accessible voting technology than that which Bill 231 otherwise locks Elections Ontario into using.

We understand that it was this current Chief Electoral Officer who asked for Bill 231 to include a broad power for him to override most of the Election Act’s provisions, if needed, to help him efficiently run elections. It is especially fitting that we take this opportunity to get him to use that power for the benefit of expanding the accessibility of the 2011 provincial election for voters with disabilities.

Let your local media know about this new development in our campaign, now over a decade long, for fully accessible elections in Ontario

****

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
Toronto, Ontario M4G 3E8
New Email Address: aodafeedback@gmail.com
Visit: www.aodalliance.org

November 18, 2010

Mr. Greg Essensa, Chief Electoral Officer
Elections Ontario
51 Rolark Drive
Scarborough, Ontario
M1R 3B1
facsimile (416) 326-6200
email greg.essensa@elections.on.ca

Dear Sir,

Re: Accessibility of the Voting Process in the 2011 Election

I write to ask you to exercise your authority under the Election Act, as amended by Bill 231, to implement voting technology in the October 2011 provincial general election that will ensure that voters with disabilities can independently mark their own ballots in private and verify their choice, without having to travel to only one polling station in their riding that is equipped with an accessible voting machine. We make this request as a result of our further examination of the changes that Bill 231 made to the Election Act, since we last wrote you.

For the October 2011 Ontario general election, section 44.1 of the Election Act, as amended by Bill 231, only requires that there be one accessible voting machine in each riding. It also stipulates that those machines cannot be connected to an electronic network.

This won’t ensure true accessibility for all voters with disabilities who cannot independently and privately mark a paper ballot and verify their choice. Especially in rural ridings, that one accessible voting machine may be very far away from a voter’s home. Even in an urban riding, that accessible voting machine will likely be noticeably further from the voter’s home than is their nearest provincial polling station.

The fact that Bill 231 only requires one accessible voting machine per riding is not the end of Elections Ontario’s obligations to voters with disabilities. Elections Ontario is obligated to do whatever it can lawfully do to honour the rights of voters with disabilities as guaranteed by the Charter of Rights and the Human Rights Code. Moreover, the Election Act, as amended by Bill 231, cannot require you to violate the Charter rights and human rights of voters with disabilities.

Based on our recent review of Bill 231, we believe the revised Election Act gives you authority to do much more in the October 2011 Ontario election than having only the mandatory one accessible voting machine per riding to ensure that voters with disabilities can vote independently and in private, without having to travel potentially great distances. Section 4.4 of the Election Act gives you, as Chief Electoral Officer, a sweeping authority to issue directives that exempt Elections Ontario from most of the restrictions in the Election Act. It contemplates, among other things, your issuing directions under that section that will promote the accessibility of elections. Section 4.4(5) states: “(5) No requirement for accessibility under this Act, the Human Rights Code or the Accessibility for Ontarians with Disabilities Act, 2005 shall be modified under this section unless the effect of the modification is to maintain or increase the requirement.”

We here ask that you exercise your power under section 4.4 of the revised Election Act to permit far more accessible voting opportunities in the October 2011 Ontario election, than the “one accessible voting machine per riding” that section 44.1 requires, for voters who, due to disability, cannot independently mark their ballot in private and verify their choice. Section 4.4(2) of the revised Election Act states that you can issue a direction, exempting Elections Ontario from most of the Election Act’s restrictions, for the purpose of “improving the voting process for electors.”

For example, we ask you to take the following steps:

1. Please now issue a direction under section 4.4 of the revised Election Act for the October 2011 general election, to allow for telephone and internet voting, as an accessible alternative to the new mail-in “Special Ballot” that sections 45.1-45.13 establish. Your direction could override Bill 231’s provision that bans the use before 2012, of any accessible voting technology that is network-connected.

We request this because the amended Election Act lets any voter vote from home, rather than going to a polling station. They can do this by using a mail-in “Special Ballot.” However, the Special Ballot is a paper ballot. People with disabilities such as vision loss, dyslexia or quadriplegia cannot mark their own paper ballot and verify their choice, whether at home or at a polling station.

The option of internet or telephone voting would overcome that barrier. It can provide those voters with disabilities with the same opportunity to vote from home, using their own access technology, as voters without disabilities enjoy via the mail-in Special Ballot.

Technology exists whereby a voter can vote over the internet or phone, leading a properly-marked paper ballot to be produced at the appropriate Elections Ontario office, for deposit into the ballot box.

We know that section 4.4(4)(3) of the revised Election Act does not let you issue a direction that overrides “The requirement that each elector place his or her ballot in the ballot box of the elector’s polling place.” This poses no impediment to our request.

As stated earlier, we propose the use of telephone or internet voting as an alternative to the mail-in Special Ballot. Any voter who mails in their ballot does not put their ballot into the ballot box. By our proposal, a voter who uses internet or telephone voting would be in no different position.

2. Please now issue a direction under section 4.4 of the amended Election Act for the October 2011 general election to allow for the deployment of accessible voting machines in a far larger number of polling stations than the mere one per riding that Bill 231 requires. That direction could permit these machines to be network-connected, or to depart from other technical restrictions that Bill 231 imposed, if that will enable Elections Ontario to have a wider range of options at a lower price. This direction too could override the Bill 231 ban on accessible voting technology that is network-connected.

Even if you do not adopt network-connected voting machines, technology exists for using a standard desktop or laptop computer, linked to a printer and equipped with a screen-reading software package. This could provide an accessible voting machine that is far cheaper than the expensive voting machine that you tested in two by-elections, and which the Government said costs at least $10,000 per machine. This could more readily be deployed at each polling station.

It may be within Elections Ontario’s plans to have a computer at each polling station for use by polling officials. If so, this option could be pursued even more economically by utilizing those computers.

Section 44.1 of Bill 231 appears drafted in a manner tailored to allow for the use of a specific accessible voting machine marketed by Dominion Voting Systems tabulator. If you do not issue the directions we request, you will be arbitrarily locking Elections Ontario into that narrow class of more costly accessible voting machines. If Elections Ontario issues a request for proposals for accessible voting machines for the October 2011 election that is limited to those which section 44.1 of the revised Election Act allows, it will quite possibly be tying itself to the most expensive option. It thus will be limiting its ability to deploy as many accessible voting machines as possible.

By issuing the direction we here request, Elections Ontario could open itself up to considering a wider array of options, including less costly ones. The same budget could buy more accessible voting opportunities.

We have warned in the past that if the most costly machine is used, and is only placed in one polling station per riding, we may well find that very few voters with disabilities undertook the journey to find those machines. That expense will have been unwisely incurred to create an incorrect fa├žade of accessibility, rather than real accessibility for the full population of voters with disabilities who are spread across this large province.

Under Bill 231, Elections Ontario is only required to deploy 108 accessible voting machines for all Ontario. This summer, I learned from the municipal official responsible for conducting federal, state and local elections in Cook County Illinois that in sharp contrast to Ontario’s plans, they deploy fully 2,500 accessible voting machines for the City of Chicago alone, which has a population of three million people. Ontarians deserve at least as much accessibility as voters in Chicago.

On Monday, November 8, 2010, Elections Ontario met with representatives of “Everyone Counts.” That is a U.S. company that markets an accessible technology for voting, including, among other strategies, internet and telephone voting. They met with us later that same day, as well as with representatives of the three political parties.

We do not endorse any specific company. However, we left that meeting with a strong sense that there are more safe and secure options for providing accessible voting than the one option to which Elections Ontario has appeared to be wedded in discussions with us and the Legislature. We believe it is important that as Elections Ontario prepares for the next election, it should seek out and use the options for accessible voting that will provide the widest range of accessible voting opportunities for voters with disabilities.

The broad power you now enjoy under section 4.4 of the Election Act to issue directions that free you from that Act’s barriers to accessibility is very important. It is our understanding that it was you who urged that the Election Act be amended to give you that broad power to exempt Elections Ontario from a wide range of provisions in the Election Act. Now that you have gotten what you appear to have asked for, we are urging you to use that power as extensively as possible to promote the goal of a fully accessible general election in October 2011.

When you appeared before the Legislature’s Select Committee on Elections on March 24, 2009, you stated: “Elections Ontario believes that the electoral process should be as accessible as possible so that all electors have an opportunity to cast their ballots. Barriers that may prevent people from voting should be removed, and voting should be as easy and convenient as possible.” We agree. For you to take the steps we are requesting in this letter would support that commitment. For you to decline to take the steps we are requesting in this letter would contradict that commitment.

Section 4.1 of the revised Election Act should be interpreted broadly to best achieve its purpose, including, among other things, advancing the goal of fully accessible elections. In deciding whether to exercise the discretion that the Legislature has conferred on you, we urge you to bear in mind that you must take into account and fulfil Elections Ontario’s duties to voters with disabilities under the Charter of Rights and the Ontario Human Rights Code whenever you exercise a discretionary power like this. Your choice should be in favour of the option that achieves the greatest accessibility.

We are aware that Bill 231 creates an arduous legal process by which the Legislature can lift its ban on network-connected accessible voting machines, starting in 2012. We cannot use that avenue to lift the ban on telephone and internet voting until after the October 2011 election is already over.

Bill 231 erects unjustified barriers to the right to vote independently and in private for voters with disabilities. However, it gives you the power to remove those barriers now. You need not wait until after the 2011 election. You can and should take the required steps now, to ensure that the 2011 election is Ontario’s first provincial election in which voters with disabilities can fully participate on a footing of equality. To refuse to issue the directions we request or comparable measures, for the October 2011 election, would fly in the face of your obligations under the Human Rights Code and the Charter of Rights.

We remain eager to receive your answers to all the questions we raised with you in our May 3, 2010 letter to you. Your June 25, 2010 letter to us left a number of those questions unanswered.

Our proposal in this letter supplements our May 3, 2010 letter. We here seek to speed up the process for achieving full accessibility for voters with disabilities that we set out in our May 3, 2010 letter to you.

We would be pleased to do whatever we can to assist you in this endeavour. We ask you to issue the direction we request as soon as possible, and to let us know your decision, and your reasons supporting that decision.

Sincerely,

David Lepofsky, CM, O. Ont.
Chair, AODA Alliance

cc: Hon. Dalton McGuinty, Premier, fax 416-325-9895, email mcguinty.mpp.co@liberal.ola.org
Madeleine Meilleur, Minister, Community & Social Services, fax (416) 325-3347, email madeleine.meilleur@ontario.ca
Marguerite Rappolt, Deputy Minister, Community & Social Services, fax (416) 325-5240, email marg.rappolt@ontario.ca
Ellen Waxman, Assistant Deputy Minister, Accessibility Directorate, fax (416) 325-9620, email Ellen.Waxman@ontario.ca
Tim Hudak, Leader of the Official Opposition, fax (416) 325-0491, email tim.hudak.co@pc.ola.org
Andrea Horwath, Third Party Leader, fax (416) 325-8222, email ahorwath-qp@ndp.on.ca

*****

Office of the Chief Electoral Officer of Ontario

June 25, 2010

Mr. David Lepofsky,
Chair, Accessibility for Ontarians with Disabilities Act Alliance
1929 Bayview Avenue
Toronto, Ontario
M4G 3E8

Dear Mr. Lepofsky:

Thank you for your letter of May 3, 2010 and the issues that you have raised in it with respect to implementation of the amendments to the Election Act. As you are aware, I believe it is my primary responsibility to ensure that Elections Ontario is serving and assisting all electors in Ontario. Elections Ontario remains firm in its commitment to ensure that all individuals are able to fully exercise their democratic electoral rights, are served in a modern, responsive and efficient manner and that the electoral process is transparent and impartial.

In implementing the amendments to the Election Act contained in Bill 231, it is of critical importance that every person who has the right to vote should have some way of doing so, that the integrity and scrutiny of the voting process must not be compromised and that the voting process should not be overly complex or expensive to administer.

In practical terms, in implementing the amendments this means that voters in Dryden have the same opportunities to vote as those in Brampton. It means that regardless of the barrier faced by an elector, whether as a senior, a student, a new Canadian or as a person with disabilities, all are served efficiently.

Since January 2010, Elections Ontario has implemented a Customer Service Policy and Procedures under the AODA Customer Service Standard and is prepared to implement changes arising out of Bill 231, legislation that amended a number of aspects of the Election Act, including amendments relating to accessibility.

In the near-term, Elections Ontario will be setting up a variety of consultation sessions, including opportunities for electors with disabilities, to provide feedback to the agency on specific implementation issues under the new legislation.

These consultation processes may include focus groups and advisory committees and will be detailed in an Accessibility Action Plan to be released by Elections Ontario to the public in the coming months. I will ensure that you receive a copy of the Accessibility Action Plan and details of the consultation opportunities as they arise relating to issues that you have expressed such a passionate interest in.

I appreciate your continued interest and support in assisting Elections Ontario on behalf of Ontarians with disabilities in being able to exercise their right to vote. If you should have any questions pertaining to our Accessibility Action Plan, you may call Michael Stockfish, Elections Ontario’s Chief Operating Officer and Accessibility Program executive sponsor. Mr. Stockfish can be reached by email at Michael.stockfish@elections.on.ca .

Sincerely,

Greg Essensa
Chief Electoral Officer

cc: Hon. Dalton McGuinty, Premier
Hon. Madeleine Meilleur, Minister of Community & Social Services
Hon. James Bradley, Minister of Municipal Affairs and Housing
Greg Sorbara, Chair, Select Committee on Elections
Tim Hudak, Leader, Progressive Conservative Party of Ontario
Andrea Horwath, Leader, New Democratic Party of Ontario
Marguerite Rappolt, Deputy Minister, Community & Social Services
Ellen Waxman, Assistant Deputy Minister, Accessibility Directorate
Tim Lewis, Director, Democratic Institutions Policy

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