On Election Day 2015, when Canadians flocked to the polls in numbers not seen in more than two decades, David Rodriguez stayed home because he couldn’t vote for his choice candidate — “none of the above.”

“There was no point in showing up — if I spoiled my ballot it wouldn’t have meant anything. It was pointless,” Rodriguez said in an interview. “I wanted to vote and express my dissatisfaction with the system during the last federal election — and I realized there’s no method to do it.”

The 26-year-old University of Ottawa law student living in Gatineau, Que., wants to change that and has been battling the federal government in court since November over the inability to formally decline a ballot.

Rodriguez argues voting is a form of expression to which all Canadian citizens over the age of 18 are entitled, and so not being able to explicitly bemoan the electoral options on offer infringes on the charter right to free expression.

Specifically, his statement of claim alleges the Elections Act places “restrictions on democratic expression” and “prevent(s) electors from officially expressing dissatisfaction with all of the candidates available to them in federal general elections.”

The lawsuit asks Ottawa to acknowledge the alleged unconstitutionality of the act and take whatever steps may be necessary to fix it.

“I want to be able to express that I’m dissatisfied, and if not, to be provided a justification why they’re not letting me express it,” Rodriguez said. “Whether that has ramifications in terms of how the electoral system works . . . that’s up to the government to decide.”

He’s bankrolled the litigation thus far and plans to crowdsource funds if necessary — Rodriguez said he’s willing to take his case all the way to the Supreme Court.

But Ottawa seems satisfied with the current rules and is poised to ask a judge to dismiss some or all of Rodriguez’s case. Last month the Department of Justice wrote the Federal Court to schedule a hearing because it “will be moving for a motion for summary judgment.” They could be back in court as early as Feb. 21.

In its statement of defence, the Justice Department denied the allegations and argued the right to free expression does not guarantee “a positive right to be provided with specific means of expression.” Nor does the charter require the Crown “to track particular forms of dissatisfaction or dissent with the political process upon Federal ballots.”

Spoiling a ballot and “the act of not voting” are also accepted forms of political expression, it added.

As it stands, uninspired voters can spoil their ballot by doing things like crossing out a candidate’s name, writing in an alternative, leaving it blank or drawing happy faces all over it, and Elections Canada will lump them together under the label “rejected” and include them in the official results.

However, much like staying home, spoiling a ballot doesn’t denote intent — there is no way of knowing if someone was apathetic, lazy, dissatisfied or just made a mistake.

A separate none-of-the-above option would unequivocally send a message to the political parties that voters are unmoved by the candidates and platforms on offer. Champions of the non-vote have also called for space on the ballot where voters can write a sentence or two explaining their discontent.

That would encourage people to show up at the ballot box to be counted, Rodriguez said.

“Not voting could just as easily mean ‘any of the above’ as ‘none of the above,’” Rodriquez said. “I could say I’m not going to vote because, well, they’re all great, it doesn’t really matter who wins. It could also mean that I just don’t care — and I do care.”

Rodriguez isn’t the first to attempt to get out the non-vote. In 2001, former Liberal MP Charles Caccia introduced legislation to enshrine an official opt-out option, but it failed, as private members’ bills tend to do. At the time, then-Conservative MP Peter MacKay said voting for no one “would be an act of apathy” and discourage participation.

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In provincial elections, Ontario, Alberta, Manitoba and Saskatchewan let voters decline ballots and count them separately in the final turnout tally.

Elections Ontario has faced flak for not properly informing people of their right to formally decline to vote. The 2014 election saw the highest-ever number of declined ballots since the province started keeping track in 1975. Many at the time chalked up the spike to an increase in public awareness campaigns by advocacy groups.

That same year overall turnout increased instead of decreased in Ontario for the first time since 1990 — but at 51.3 per cent, that still means nearly half of those eligible did not vote.