Too close to call: how recounts work – and how they might play out in the federal election

Recounts could be the wild card in this election — a factor that could decide who wins a riding, or delay the formation of the next federal government, well after Canadians finish casting their votes.

If the polls are correct, Monday’s election could end in a photo finish in several electoral districts. In most past elections, there’s enough of a difference in the vote count between the first and second-place candidates for the parties to either claim victory or concede defeat, and for the decision desks at the news networks to project the night’s winners.

In some ridings, making that call might be a little more difficult this time.

In fact, contested or uncertain results in multiple ridings could leave the overall result of the election — who won, who lost — in doubt for days. If contested results lead to legal challenges, we might not know for certain who won the 2019 election for weeks.

The 2015 federal election saw six judicial recounts. A high-profile one happened in the riding of Edmonton-Mill Woods, where it took 10 days to declare Liberal Amarjeet Sohi the winner.

“Because of the closeness of the election, it is very possible that Canadians will not be able to go to bed knowing who has the first option of forming the next government,” said Scott Thurlow, an Ottawa lawyer who has been involved in election recounts.

How can a riding result be challenged?

According to the Canada Elections Act, it can be challenged in several ways:

Automatic Recounts: These recounts happen when the difference in the number of votes received by the top-finishing candidates equals 0.1 per cent or less of the total number votes cast.

Elections Canada makes a formal recount request to the superior court of a province or territory and a judge has to oversee the recount within four days of receiving the request.

Requested recounts:  A recount can still happen when the results aren’t close enough to warrant an automatic recount. Elections Canada says candidates and voters in a riding must ask for one within four days of the release of the validated results.

To get a recount, the applicant must give notice to Elections Canada, file an affidavit before a judge arguing the formal vote count was carried out improperly, and pay a $250 deposit with the court. If the judge agrees to proceed, the recount must begin within four days of receiving the application. Both automatic and requested recounts are called “judicial” recounts.

Contested results: These reviews are much more serious and are not considered recounts. According to Elections Canada, they involve allegations of fraud, corrupt or illegal practices, or a claim that the candidate who won is ineligible.

“Those ones are rarer,” said Diane Benson, an Elections Canada spokesperson.

Any elector or candidate within a riding can contest the election result in their district. To do so, an application must be filed before the Federal Court or the superior court of a province or territory within 30 days of discovering the alleged wrongdoing and the official publishing of the results in the Canada Gazette (the official newspaper of the Government of Canada).

A $1,000 deposit fee must be paid to the court, and copies of the application must go to the Attorney General of Canada, Canada’s chief electoral officer and the electoral district’s returning officer.

Chief Electoral Officer (CEO) Stephane Perrault tours the Elections Canada distribution centre as workers prepare shipments in Ottawa on Thursday, Aug. 29, 2019. (THE CANADIAN PRESS/Sean Kilpatrick)

“The court may at any time dismiss an application if it considers it to be vexatious, frivolous or not made in good faith,” says the Canada Elections Act.

How long can recounts take?

They can take days — or weeks.

According to Elections Canada, judicial recounts can only occur after results are validated. Canada’s election authority has up to a week following polling day to verify the results.

“You have to again understand that returning officers and their teams have been up ’til the middle of the night on election night, until 2:00, 3:00, 4:00 in the morning sometimes,” Benson said. “So we try not to put too much pressure on them to do it right the next day. By the law, we have up till seven days to do that validation.”

Once the validated results are released, requests for a recount must be received within four days. Whether it’s an automatic recount or one that was requested, a judge must begin the recount within four days of receiving the request. In some cases, contested results can be challenged all the way to the Supreme Court.

Thurlow said these recounts can drag on for weeks after an election — and if the gap between the seat counts for the two leading parties is particularly narrow, the courts could wind up determining the outcome the election.

Elections materials are displayed at the Elections Canada distribution centre in Ottawa Aug 29, 2019. (THE CANADIAN PRESS/Sean Kilpatrick)

“It is possible that this could be drawn out. I, of course, hope that it is very clear and decisive,” Thurlow said. “The last thing that I think the country needs is a battle at the Supreme Court of Canada to determine whether or not a ballot that is passed in a random riding is the one that leads to the selection of the next first minister.”

How are recounts re-counted?

The judge can decide to count every ballot — including spoiled, rejected and valid ballots. The judge also can opt to count just the valid ballots, or simply verify the number of votes reported by poll workers in their paperwork.

“In the past, judges have said, ‘I’ll do a percentage’,” Benson said. “And they start going through the count and say, ‘I’ve got enough evidence now to show that the count went well.'”