Six things to know about the NWT’s proposed new election rules

The NWT is proposing its biggest overhaul of territorial election rules in 20 years. There are some new items and multiple tweaks. Here’s a guide.

NWT MLAs are now considering Bill 58, Elections Act. If the bill passes in the next few months, the new rules will be in force for the 2027 territorial election.

Stephen Dunbar, the NWT’s chief electoral officer, told Cabin Radio the old legislation had been modified many times but ended up having painstaking detail in some areas, while “barely regulating” others.

Dunbar thinks some areas of the bill are sufficiently new that other parts of Canada are watching closely.

Here are some highlights we picked out and which he discussed with MLAs at a briefing on Monday.

1. The new rules tackle AI and ads

This is the first big rewrite of NWT election legislation since artificial intelligence became a large part of many people’s lives.

Under the proposed rules, election advertising created using AI would have to be marked as such or it could be taken down.

The bill also tries to address some of the ways people can spread lies online during an election. If you try to impersonate a candidate (for example, using AI) or if you recklessly publish certain things that can be easily disproved – such as claiming someone has a conviction, when they haven’t – you can face penalties.

Elections NWT could find itself going up against big social media companies to get things that break the rules removed. “We can issue a takedown notice to that social media company saying this is false advertising, this is not real, this needs to be taken down,” said Dunbar, “and the social media company has 24 hours to abide by that takedown order. There are significant penalties in place if they fail to do so.”

But Dunbar made clear that the rules don’t mean Elections NWT will start governing posts about candidates’ policies, their positions, or anonymous criticisms in your local rants ‘n’ raves Facebook group.

“Elections NWT is not the arbiter of truth,” he told MLAs who asked about this on Monday.

“If someone put out a social media post that said ‘Candidate A hates puppies and only wants kittens,’ that’s not something that’s verifiable and is not something we would engage in.”

The proposed rules also contain new requirements for third-party sponsors, like the Union of Northern Workers, that might make donations or buy ads supporting (or opposing) candidates during elections.

The proposals include new reporting and disclosure requirements for those third parties, plus more ability to inspect and audit third-party spending and enforce compliance with the rules.

Giving an example of one rule change to MLAs, Dunbar said: “Instead of a third-party advertiser that can give you $1,500 and run $3,000 of advertising supporting you – in a sense tripling the maximum donation amount – they can [now] do one or the other. They can either give you $1,500, or they can run advertising that supports the candidates of their choice.”

Third-party rules can also be used to address potential threats from foreign actors.

Dunbar told MLAs he has “had discussions with national security organizations,” without suggesting there was any evidence of foreign interference in NWT elections. He said federal security agencies’ ability to work on a territorial election has already separately expanded, and they are now “able to share information in a way they were not able to before.”

2. There are lessons from Yellowknife’s election, kinda

Yellowknife’s October election used tabulators, which delivered an exceptionally swift result on the night. Within about an hour of the polls closing, the results were pretty clear.

NWT elections are not likely to adopt that technology any time soon. Dunbar explained why to MLAs who had been impressed by the tabulators.

He said tabulators are great for ballots with multiple choices like the Yellowknife election, where voters had to pick up to eight choices from more than 20 candidates.

But when you have a few hundred ballots in a small NWT community and everyone is making just one choice – picking their preferred candidate for MLA – Dunbar said tabulators aren’t “that much more efficient” than good old-fashioned counting, and they come at extra cost.

Even so, the new legislation writes a rulebook for vote-counting equipment, ballot printers and electronic poll books so that they can be used in future elections.

Yellowknife’s election also saw some confusion over advance voting dates. The city and Elections NWT ended up changing the cut-off for advance voting after a conversation with the NWT government about the relevant legislation. Some people said they only discovered the dates had changed when they went to vote in advance and were told no.

Local elections like Yellowknife’s are controlled by different legislation.

Dunbar said territorial legislation allows advance voting closer to election day than was the case in Yellowknife.

“Certainly, I heard many, many comments about the voting period, and unfortunately there had been a miscommunication on the city website with the wrong dates, so that led to even more confusion,” he told MLAs.

3. In a boring but important way, who does what is changing

The chief electoral officer – Dunbar or whoever may succeed him – gets “a lot of power” under the proposed new rules, according to Range Lake MLA Kieron Testart.

At Monday’s briefing, Testart said that concerned him. “In the past, I have seen chief electoral officers make decisions that candidates haven’t always agreed with, and members of the public haven’t always agreed with,” he said. “Now we’re creating more space, more potential for those opportunities to arise.”

At the heart of that concern is the way the bill moves some things out of the act itself and into the regulations. Generally, regulations are seen as being easier to change than legislation when issues arise.

Dunbar says moving some things into regulations and giving the chief electoral officer direct oversight of them means more flexibility.

The bill also enshrines into law the principles of accessibility, fairness, reliability, and transparency. Dunbar says if a chief electoral officer isn’t upholding any of those principles in their decisions, MLAs or courts can use the bill’s provisions to hold them to account.

4. Emergencies get more attention now

The 2023 territorial election nearly went off the rails because wildfires and evacuations left some communities in no position to hold an election, but the legislation didn’t set out what should happen.

Dunbar told Cabin Radio the NWT came close, that year, to an extremely odd “piecemeal” election in which some districts went ahead on schedule and others were delayed.

The bill offers the chief electoral officer the option of triggering an election-wide delay of up to six weeks in exceptional circumstances, Dunbar said, without needing MLAs to sit and pass emergency legislation, which is what had to happen in 2023.

5. Liquor stores still close on polling day

One of the NWT’s quirks is a rule that prohibits liquor stores from opening or restaurants and bars selling alcohol while polling stations are open on election day.

Bill 58 removes that rule, but don’t get too excited. The same rule also exists in the Liquor Act’s regulations so, until those regulations are amended, liquor stores will still be obliged to close on polling day.

6. The rules for a close race change

Up till now, an automatic recount was triggered in a territorial election when the top two candidates were separated by less than two percent of the total votes cast in that district.

This required math, which is not always easily done under pressure on election night with hundreds or thousands of ballots at play.

The bill would change this to a simple margin of less than 10 votes. If you’re eight votes ahead of your rival, recount time. If you’re 11 votes ahead, we’re done here.

“It’s much easier to understand,” Dunbar said of that change.

“It doesn’t involve having to do calculations on election night, trying to determine whether or not we need to start the legal paperwork to apply for a recount. The two-percent threshold also meant that could be five ballots cast in one electoral district, it could mean 20 ballots cast in another electoral district … we felt that 10 was a reasonable threshold to put in there.”

Dunbar noted that MLAs are still reviewing the bill and can make amendments, so this provision and others could change before the rules are finalized, which is expected in early 2027.