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Court action challenges integrity of last fall's municipal election in Cambridge

Ward 3 candidate Nate Whalen names 31 'irregularities' in his challenge of the city's 2022 election
2022 Cambridge council candidate Nate Whalen has filed a motion with the Ontario Superior Court compelling the City of Cambridge to provide records from the election for independent review.

A Cambridge man who lost in last fall's municipal election is challenging the election's integrity, citing technical issues with the online voting system and a long list of "irregularities" in a motion to the Ontario Superior Court that compels the city to hand over all election records for independent judicial review.

Nate Whalen, who failed in his bid to become a Ward 3 councillor, announced the motion Thursday in a press release, saying Justice Michael Valente has scheduled a preliminary hearing on the matter for April 13.

Whalen filed the challenge on Jan. 23 after spending several weeks gathering evidence of 31 alleged "irregularities" he says occurred during and in the time leading up to the Oct. 24 election.

They include a software glitch that temporarily prevented electors from casting online ballots, a lack of polling station scrutineers and the nomination process itself, which rejected a candidate for not having enough endorsement signatures despite a witness claim to the contrary.

Whalen said the software used by Dominion to conduct online voting for dozens of municipalities, went down between 10 a.m. and noon, and 5 p.m. to 6:45 p.m. on election day, which "likely impacted electors casting their ballot."

Whalen provides a full list of the irregularities on his website.

The list includes the city's botched first attempt to elect Cambridge trustees for the Waterloo Catholic District School Board after two names were left off the ballot.

The city's clerk, Danielle Manton, declared an emergency and postponed the WCDSB trustee election until late November after the error was discovered two days before the Oct. 24 election.

In late November, the city initiated a third-party review of the ballot blunder "to understand how and why the error occurred and to ensure improvements toward future processes."

That review, by retired regional clerk Kris Fletcher, is expected to produce a report to council later this spring that will include the full cost of the trustee election.

Whalen said the purpose of his challenge is to go beyond the scope of that review.

"I really felt that after I looked at all the incrimination and magnitude of it, that this case addresses things outside that scope," he said. "It's really just a small component of a series of issues that plagued this election."

He said his concern "grew exponentially" after the city attempted to block his investigation by refusing to release 38 of 40 records he'd requested through freedom of information in November. The city claimed it couldn't until the last legislative date to file a Controverted Election Application with the Court on January 23, 2023. 

Whalen, who was cross-examined Friday by the city's lawyer, is representing himself in the case since he would have to raise money from his supporters to hire a lawyer. He and his husband have already contributed the maximum amount allowed to his campaign, he said.

Whalen said that with 10 of 17 positions elected by fewer than five per cent of the electorate in Cambridge "it stands to reason we should be looking more closely at our elections."

"While we're unsure of who or what is behind some of the irregularities, all Canadians should be concerned about protecting our democracy and election integrity from actors, both foreign and domestic. The kind of things going on in our elections wouldn’t be tolerated elsewhere, and we cannot simply stand by while people continue to erode Canadian democracy and the foundation of our fundamental rights and freedoms.”

Paul Robertson, an avid council watcher and a volunteer on Whalen's campaign, said he's worked several elections at all levels of government and he's never seen anything like what he witnessed as a polling station scrutineer last fall.

"People are losing faith. People are saying it's predetermined," he said. "When people are saying that, they have reasons for saying that and right or wrong, if they don't believe in the system, they don't vote and things get worse."

"I want to know what went wrong because I do believe in free and fair elections and it scares the hell out of me when I see some of the stuff that's happening."

Apart from the system failure, which he said is his biggest concern and could be someone "testing the waters" for a bigger election hack, Robertson said the opportunity to scrutinize the vote didn't follow any procedure he's used to.

As a scrutineer, he couldn't check the ballot boxes for tampering since they were already sealed up when he arrived at one polling station. And instead of counting the ballots at the polling stations, they were taken to city hall for the final tally, something he said is never done to prevent tampering.

"Something didn't seem right on so many levels with this election," said Helen Shwery, a Ward 1 candidate who lost to incumbent Donna Reid by 46 votes.

Shwery is eager to see the result of Whalen's legal challenge and is of the belief the city "should change the way they're doing things."

She thinks the glitch that shut down online voting in several municipalities half an hour before polls closed led to a lot of missed votes, adding the City of Cambridge wasn't prepared for that possibility.

Voters were given a phone number on their voter cards if they encountered technical issues, but after 5 p.m. that number led to a recording that stated city hall's hours of operation.

The city extended the time polling stations were open on Oct. 24, but only made that information known through its Twitter account, relying on local media to get the word out.

"It just didn't seem like it was very organized in case something like this happens," Shwery said. "If you're going to do that, make sure you have your bases covered. Stuff happens. Have a backup plan."

Her disappointment has nothing to do with the outcome, she said, even though while door-knocking during her campaign she encountered several residents who didn't receive voter cards, weren't on the voters' list and didn't even know what ward they were in.

Shwery said she had a difficult time herself getting on the voter list and came across one person who had a voter card for Cambridge but was not a resident.

"This whole thing is about making sure we hold the city accountable but also create case law. There's a lot of gaps in case law in the Municipal Elections Act and there's a lack of regulations in voting and voting tabulators," Whalen said.

Contacted by CambridgeToday, the City of Cambridge said it will not engage in discussion about this matter in the media and has no further comment.

In her affidavit to the court, city clerk Danielle Manton said "there was no interruption to the ability to vote online during Election Day. However, the City’s own website experienced a brief disruption during Election Day (October 24, 2022) shortly after 7 pm."

"To alleviate any confusion, I extended internet voting by 30 minutes beyond 7:59 pm to provide an additional opportunity to vote via the internet. The City also posted a note to its social media channels advising residents of the extended time period within which to vote. The City did not begin reporting results until 9:30 pm that day."

Manton also states that her office engaged with scrutineers and any candidates that appeared at City Hall prior to the close of polls.

Using the closing of the City Hall tabulator as an example, Manton said it "was done in witness of any candidates and/or scrutineers present at City Hall."

"All candidates and scrutineers at the close of polls at City Hall were invited to challenge any ballot."