Elections Alberta posted incorrect information on equalization referendum, law experts say

Elections Alberta shared incorrect information about equalization on its website in advance of the recent referendum that may have misled voters about what effect a yes vote would have, constitutional law experts say.

Fulfilling a campaign promise, the United Conservative government of Alberta Premier Jason Kenney ordered a referendum on equalization be added to the Oct. 18 municipal election ballot. 

Kenney had urged Albertans to vote yes to removing equalization from the Constitution, even though the province has no power to unilaterally change the Constitution. The final results, released Tuesday, stated that 61.7 per cent of voters supported the equalization question, while 38.3 per cent voted against.

Equalization is a decades-old system in which tax revenue collected by the federal government from individuals is distributed to so-called have-not provinces based on a yearly calculation. 

Kenney has contended that Alberta unfairly pays too much into the system. He has said a yes vote would provide Alberta with leverage to negotiate a better deal with the federal government.

Yes vote information incorrect: experts

The question on municipal ballots was: "Should Section 36(2) of the Constitution Act (1982 ) — Parliament and the government of Canada's commitment to the principle of equalization payments — be removed from the Constitution?"

The website told voters they may vote yes or no to the question, and explained:

• A "YES" vote means that you support the removal of Section 36(2) from the Constitution Act, 1982, ending the practice of equalization payments.
• A "NO" vote means that you support keeping Section 36(2) in the Constitution Act, 1982, continuing the practice of equalization payments.

Nigel Bankes, a retired University of Calgary law professor, said it is "simply not the case" that a yes vote would end the practice of equalization payments, as stated on the Elections Alberta website.

"The general picture that is being portrayed is that it would end the transfer of money and it clearly would not."

Critics have accused Kenney of misleading the public about what equalization is and how it works.

Kenney has repeatedly claimed that Alberta is effectively subsidizing provinces like Quebec through the transfer of money that should stay in Alberta.

Bankes said the impression created by Elections Alberta's interpretation of a yes vote "would buttress what the Kenney government has been telling people, which is that we're sending too much money to other provinces that should be staying here."

The general picture that is being portrayed is that it would end the transfer of money and it clearly would not.- Nigel Bankes, retired U of C law professor

Both Bankes and Eric Adams, a constitutional law expert at the University of Alberta, said the Elections Alberta explanation is incorrect because the vote wasn't about ending the practice of equalization.

"We were voting on whether to remove the principle promoting equalization from the Constitution, and that is an entirely different exercise," Adams said. "And it gave rise to some of the confusion that circled around this referendum."

Bankes, Adams and Stephanie Chouinard, an associate professor of political science at Queen's University, independently said the Elections Alberta explanation also was misleading because even if a yes vote won the referendum it would not necessarily end the practice of equalization.

"This element in the constitution has no bearing on whether the federal government would continue to award equalization payments to have-not provinces in the country," Chouinard said.

Twitter 'spat' troubling

Chouinard said she reviewed the information about the referendum on the Elections Alberta website after seeing a protracted "Twitter spat" between University of Alberta economics professor Andrew Leach, who also has a master's degree in law, and the official Elections Alberta Twitter account, including on election day.

Leach, on Oct. 15, called out Elections Alberta for posting "misleading" information. 

"You'd never say a yes vote would 'lead to a reduction in federal taxes' because that would be leading, but you're doing the same thing with a statement on federal spending." 

Later the same day, Leach tweeted: "Your reminder that even our @ElectionsAB office continues to misrepresent the potential outcomes of the equalization referendum. Vote no to both the politics of division and the ongoing efforts to make Albertans less knowledgeable about our democracy."

The Elections Alberta Twitter account later responded: "There is no implication made. Read it for how you will. Thanks for your comment."

The online sparring between Leach and the Elections Alberta account continued on election day itself, which Chouinard found troubling, in part because of the "rather flippant and inaccurate" responses of Elections Alberta.

"I think what happened on Twitter was a bit of a look inside of the [Elections Alberta] institution, where we saw the veneer crack and where we saw some potentially serious issues going on within the black box that is Elections Alberta," she said.

On election day, Elections Alberta posted an apology and later deleted the tweets. 

"Unfortunately, one of our staff at Elections Alberta was unprofessional in responding on Twitter today. We sincerely apologize for that. Albertans have the right to expect Elections Alberta to always remain unbiased and respectful in the election process."

Ad agency hired to help

In an interview, Pamela Renwick, acting deputy chief electoral officer for Elections Alberta, acknowledged the Twitter spat on election day would raise questions about whether Elections Alberta is non-partisan.

Citing privacy, she declined to name the employee who posted on behalf of Elections Alberta and what, if any, discipline they may have received.

She said however, that the information on the Elections Alberta website was accurate because it made clear "that the constitutional referendum vote cannot result in an amendment to the Constitution."

Renwick also pointed out that the information on the website stated that "the result of this vote is binding only on the provincial government to pursue the action directed by the majority vote, not on the federal government to amend the Constitution Act" and that "to remove or amend the Constitution, the federal government and the other provinces and territories would need to enter into discussions about the proposed change."

To ensure Elections Alberta didn't issue partisan messaging, Renwick said they hired an advertising firm, ZGM Modern Marketing Partners, to produce the simplified explanatory information about what the yes and no votes meant.

ZGM has produced several marketing campaigns for the Alberta government, including the recent "COVID loves" campaign. 

"We asked experts in the field for their opinion on the wording," Renwick said, adding that the questions were then reviewed by a focus group and the office's legal team "to try and make sure that our messaging was as unbiased as possible. 

"I understand that some people might look at our answer and say, 'You know, this isn't what you should have provided' or 'it's not correct.' But in our process, this is what we did come up with, and we do think that it was as non-partisan as we could get while explaining the question."

Expert says he didn't approve website questions

Renwick said the advertising agency also consulted University of Calgary economist Trevor Tombe, an expert on equalization. Tombe said he did not see or approve the interpretation of the yes and no questions that appeared on the website.

Tombe said an earlier version of the questions he reviewed did not include the clause about how a yes vote would end the practice of equalization payments.

Bankes said the information on the Elections Alberta website and the statements made by its employee on Twitter was riddled with the sort of errors "you would not even expect from a first-year law student."

Both Bankes and Adams said they were not consulted, and Adams said Elections Alberta made a serious mistake when it attempted to explain the referendum question to the public. 

"The [Kenney] government was pretty muddy on these questions," Adams said. "But I think in this situation it was incumbent on Elections Alberta to stay entirely clear of the controversy and let the referendum question speak for itself.

"Because in an attempt to try and unpack it, they were drawn into political discussions in which they properly have no place.

"The episode that unfolded on Twitter was a good example of the reasons to avoid that in the first place."