Unhappy voter loses bid to officially vote ‘none of the above’ in federal election

A law student unimpressed with all of the candidates running in his riding in the 2015 federal election who wanted to vote “none of the above” has lost his Federal Court of Canada challenge that election rules breach his right to freedom of expression.

David Rodriguez, a University of Ottawa law student who lived in Gatineau, Que., chose not to vote in the last election because he was not able to “officially express dissatisfaction with all of the candidates available to him,” he said in a statement of claim, filed when he launched his Charter challenge last year.

He wanted ballots cast for “none of the above” to be counted and noted, as a way of expressing dissatisfaction with political options. He claimed the election laws stifled that expression of legitimate political belief.

A ruling by Judge John Norris, published Monday, showed sympathy for the questions Rodriguez’s case raised but ultimately dismissed his legal challenge. Under the Canada Elections Act, a properly cast ballot must record a single vote for a single candidate listed on the ballot. Anything else is rejected.

Had Rodriguez — or any voter — expressed antipathy to the choices on the ballot, such as writing in the name of an alternate person, crossing off all the names, writing the words “none of the above,” or even leaving it blank, no one would know.

Federal election results are only recorded as the number of votes cast in favour of each candidate on the ballot, followed by the total number of all improperly cast ballots — without any explanation of the reason for rejection.

Rodriguez represented himself in the case.

Norris accepted that demonstrating a rejection of all candidates standing for election was a form of political expression, but said the federal election laws do not actually prevent him from writing “none of the above” on his ballot. The laws only prevent people from knowing about it.

“The public will never know how many ballots, if any, were cast with a view to rejecting all the available candidates,” wrote Norris.

As such, the government was not interfering with Rodriguez’s expression; it just wasn’t amplifying it.

Rights and freedoms are often loosely referred to as “positive” and “negative” obligations on government. The right to vote requires government to take a positive action — to hold free and fair elections, Norris noted. The right to freedom of assembly, on the other hand, requires government to maintain a negative action — not to shut down a lawful gathering.

Freedom of expression is often seen as a negative obligation.

Norris cited a past Supreme Court ruling that the government generally cannot gag people from speaking but it is not obligated to give them a megaphone.

Rodriguez had access to the platform of voting but was claiming a restriction on the content he was allowed to express on the platform. Norris didn’t accept that as an actionable restriction.

An election was designed for selecting who will sit in the Commons and not as a means of expressing whether any of the candidates are deemed worthy, Norris said.

“His only complaint is that the government has not designed the voting process in a way that permits him to express a particular opinion by a particular means.

“There are many other ways Mr. Rodriguez could express his opinion about the candidates in the last election, the government is not required to furnish the one he would prefer.”

Although Rodriguez lost his case, Norris did let him avoid paying the government’s legal bills for fighting it.

“While I have found that there is no genuine issue for trial, this is not to say that this case did not raise issues of public importance. On the contrary, it raised serious issues concerning freedom of expression under the Charter and democracy. Mr. Rodriguez is to be commended for his engagement with these issues,” Norris wrote.

Rodriguez could not be reached.

He is not the first to express dissatisfaction with not being able to express dissatisfaction. A private member’s bill was introduced in the Commons in 2001 proposing amendments to the election act that would permit an elector to formally decline the ballot, as electors can do in provincial elections in Ontario, Alberta and Manitoba. The bill failed to gain adequate support and was dropped from Parliament’s agenda.

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