When a complaint is received
or an alleged offence reported, a decision must be made whether to investigate.
Important integrity issues are raised by the possibility of an investigation
launched in response to a complaint that might be unsubstantiated or pursued
for political ends.
To ensure integrity in the
complaint review process and in the decision on whether to investigate,
complaints would need to be reviewed in a professional and timely manner.
Reviewing means examining whether a complaint is credible, whether there are
grounds to think that a law has been broken and whether an investigation is
likely to identify the offender.
Many countries have adopted standard
procedures and criteria for determining whether a complaint is valid and should
be investigated.
Valid
Complaint
The following are some of the
factors used to determine whether a complaint is valid and which agency has
jurisdiction over the investigation.
- Substance. Does the substance of
the complaint suggest that an offence has been committed and that it is
serious enough to warrant an investigation?
- Violation. Has a law been broken
and, if so, which one? Is it an administrative, civil or criminal matter?
Has a national law been broken, warranting a central (or federal)
investigation, or is it a regional or local issue?
- Scope. Is the violation an
isolated act or is it the outcome of an organized effort to subvert the
electoral process? Widespread systemic problems often fall under national
jurisdiction.[1] Could the irregularity,
if proven, have an impact on the election results?
- Evidence. Is there enough factual
information in the complaint to provide leads for investigators to pursue?
Is it reasonable to think that these facts could be verified through an
investigation? Are the witnesses credible and willing to
cooperate?
Most systems have developed
detailed procedures for evaluating a complaint, including a timeline for
responding to the complainant.
Reasons
for Dismissing a Complaint
In most systems, complaints
may be dismissed for one or more of the following reasons:
- The allegations are
anonymous and the matter is not serious enough to warrant investigation.
- The allegations are vague
or frivolous, and further investigation appears unlikely to provide more
conclusive information.
- No laws or regulations
appear to have been broken.
- The allegations appear to
be well-founded but an investigation would not help to identify the
offenders, or there is not enough evidence.
- The evidence indicates
that there was no intent to violate the law.
- The complaint was filed
after the stipulated deadline.
Instead of being prosecuted,
mistakes or “ministerial” errors (i.e., ones
which affect purely administrative tasks and do not involve policy discretion) are
usually handled through the oversight procedures of the electoral management
body. An error that had a significant impact on the outcome of an election is
usually challenged by a losing candidate through the complaints and appeals
process.
Determining
Case Priority
Policy also determines the
priorities for investigation. It takes much time and effort to investigate
allegations of voter fraud. Some investigative agencies do not have the human
or financial resources to investigate every substantive complaint. Integrity
issues may arise if there are no objective criteria by which to set priorities
for investigation, with the task left to the discretion of individual
investigators or officials responsible for enforcement. These may be suspected
of “burying” cases likely to have political ramifications or of giving priority
to cases that are relatively unimportant.
These types of integrity
issues can be addressed effectively through monitoring and oversight of the
enforcement process, as discussed in the subsection on Monitoring of
Enforcement.
[1] Donsanto, Craig, “The Federal Crime of Election
Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral
Systems, IFES, op. cit.
