Enforcement of Electoral Integrity

Subverting the electoral process is a breach of public trust and an illegal act. Enforcing the law is essential in order to maintain electoral integrity. Without enforcement, the best legislation can be bypassed or ignored.

Enforcement is a deterrent to fraud and a guard against problems that threaten electoral integrity. Dishonest or fraudulent practices are not the only source of integrity problems. They may also result from human error or unintentional omissions. Even when there is no ill intent, these mistakes also need to be subject to corrective measures. Different institutions and mechanisms may be responsible for enforcing election integrity and legislation, as specified by each country’s legal framework.

In some systems, enforcement agencies have complete institutional independence, especially the institutions dealing with criminal justice. Others work under a common institutional umbrella with the electoral policy-making or management bodies. In all cases, enforcement requires:

• clear definition of the types of offences;
• the opportunity to make a complaint;
• a decision to investigate;
• a decision to initiate proceedings in order to determine facts and obtain evidence;
• prosecution and judicial proceedings that make offenders accountable for their actions, and provide for a ruling and the opportunity to appeal; and
• penalties and sanctions for those found guilty.

To be effective, enforcement must be active, impartial and timely. Investigative agencies and their investigators must have enough independence to examine allegations of election fraud or other illegal activities, and to initiate legal proceedings. Investigators must be objective and professional, and shielded from any political interference with their work.

Integrity also requires that the rights of whistle-blowers, witnesses and the accused be protected. Defendants must have access to legal representation and to the information that has been gathered against them. They must also be able to present an adequate defence. These protections are discussed in Rights of the Accused and Rights of Individuals in Investigations.

Prosecutors are usually government employees or elected officials, who may be sensitive to public opinion and the politics involved in the problem being investigated. Prosecutors often have discretion in determining whether the evidence warrants a prosecution and, if so, who will be prosecuted. Subjective or unlimited discretion may have an impact on integrity.

Courts and (where applicable) juries determine guilt or innocence. They must be impartial. An objective judgment is based on factual evidence and the legal context, not on political affiliation, discrimination or unsubstantiated rumour. Usually, an independent judiciary is required for a hearing to be fair.

The enforcement process may be subject to internal and external pressure and difficulties. A transparent system with checks and balances can protect the integrity of the enforcement process. These issues are discussed in Monitoring of Enforcement and Investigating in Difficult Circumstances.

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Types of Offences

Electoral legislation regulates a number of electoral processes, including not only voting procedures but also election financing, registration of candidates and political parties, the election campaign, election advertising, the media, and lobby groups. With this broad range of areas covered by legislation and regulations, there is an equally wide array of possible offences.

For instance, offences may involve exerting undue influence on the vote and election results, obstructing election operations, failing to observe prescribed limits on expenses or contributions, showing partiality as an electoral administrator, running election ads during blackout periods, or using lists of electors for personal ends. The possibilities for offences are as diverse as the election activities themselves.

Legislation may make distinctions according to the nature and seriousness of an offence, and may establish the degree of intent required to find someone guilty. It thus treats some offences as minor and others as serious infractions. Another distinction is between hard and fast offences, where the simple fact that an act occurred is enough to determine guilt, and offences committed with intent.

Penalties are usually applied to reflect the nature and seriousness of an offence.

Making a Complaint

Most investigations are undertaken in response to a complaint from an individual or findings of the oversight mechanism. In systems where investigations are not conducted by the police, investigators might not be empowered to initiate an investigation without a sworn complaint or other authorization. This is the case in Canada, where special investigators cannot start an investigation without the approval of the Commissioner of Canada Elections or the Counsel to the Commissioner. [1]

A complaints process that is non-threatening and easily accessible to the average citizen can facilitate the reporting of integrity problems. Citizens should not be afraid of making a valid complaint, or be deterred from doing so because of cumbersome or intimidating procedures. In general, integrity requires the following:

• Any person should be able to file a complaint if he or she believes a law has been broken or a violation is about to occur. This helps authorities to uncover and deter crimes.
• Complaints should be made in writing, signed and dated, and sent to the appropriate office. To avoid frivolous or anonymous complaints, some systems require official complaints to be notarized. However, some persons may be afraid to make a complaint if they have to identify themselves. Each system should have a mechanism to deal with such situations.
• Complaints should be made in a timely manner, show that a violation has occurred and, if possible, identify the persons involved. Complainants must differentiate between statements based on their personal knowledge and second-hand information or rumour. Sources of information must be identified; this helps ensure that law enforcement officers have enough information to evaluate the complaint and decide whether it warrants investigation.

Making Complaints Public

Making a complaint public, or keeping it secret, may raise integrity questions. Does the public have a right to know about violations of the electoral process? If so, to what extent? If a complaint is made public, suspects may realize that they are under investigation and destroy evidence. Complainants may also be at risk for making a complaint and may want their identity protected.

Whether a complaint will be made public during the investigation phase depends chiefly on the system and the nature of the complaint. In Canada, the policy is to “neither confirm nor deny the existence of a complaint and investigation and to not comment publicly on the identity of a complainant.” [2] Other systems may confirm the existence of a complaint but not comment on the ongoing investigation.

Whichever approach is used, a balance needs to be found between ensuring transparency of the enforcement process and ensuring the integrity of the investigation.

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

[2] Ibid.

Investigations

There are many types of investigations. The media often undertake their own investigations when reporting on allegations of voting fraud or other electoral problems. Non-governmental organizations and national election observers may also investigate problems that they encounter and may gather evidence. They then publicize the problem or hand the evidence to a government prosecutor.

Citizen groups and the media can play an effective role in ensuring that integrity issues are unofficially investigated if lack of political will or resources prevents the holding of an official investigation. Unofficial investigations must respect the rights and privacy of individuals, and must not interfere with official investigations.

Official Investigations

Each country has its own system for investigating complaints about electoral violations. The details of the system are usually set out in legislation and regulations, which mandate a specific agency or agencies to handle these issues.

In many systems, the official investigative mechanism is the police department, working with the electoral management body or oversight agency. In other systems, investigation is the responsibility of a specific office within the electoral management body—for instance, the Commissioner of Canada Elections in Canada.

In federal systems, the investigative body that will handle a case is decided by which law has been broken. For example, in the United States there is an office within the Department of Justice for federal election crimes but individual states handle violations of state law. The national-level Federal Elections Commission investigates violations of campaign financing legislation.

An official investigation seeks to determine whether a crime has been committed, uncover the relevant facts and consider whether the facts indicate who is responsible. If the investigation leads to a reasonable assumption of guilt, the information must be handed to the prosecuting agency. The prosecutor usually determines whether the evidence warrants further action, and who should be charged with what crime.

Investigating with Integrity

Election-related investigations must be conducted to the same high standards of integrity that are expected of electoral administrators and participants. In general, maintaining integrity in an investigation requires:

• Independence. An investigation must be objective and impartial. This is difficult when political pressure is placed on investigators to arrive at a certain outcome. It is easier to maintain objectivity if the investigative agency is not dependent on another agency for direction, resources or personnel.
• Neutrality. The investigative agency should be neutral, as should its investigators. Neutrality may be easier to maintain if the agency is politically independent, and if staff members are public service employees rather than political appointees. Neutrality can also be promoted by requiring individual investigators to disclose potential conflicts of interest in cases under investigation and by ensuring that they do not participate in investigating those cases. In Canada, for example, to maintain public confidence in the neutrality of the Office of the Commissioner, special investigators must not engage in politically partisan activity at the federal level. Special investigators must not work for or on behalf of any federal political party or candidate for federal office, or be associated with any person, body, agency or institution with partisan or political purposes; they must not support or oppose the election of any political party or candidate in a federal election. During a referendum, they must not sit on any referendum committee, or publicly support or oppose any referendum option. [1]
• Jurisdiction. An investigative agency’s jurisdiction over a particular case is determined primarily by which laws have been broken. This can be an issue in a federal system where there are national, regional and local jurisdictions.
• Qualified investigators. Investigators should be professionals who know how to investigate and gather evidence that will be protected and admissible in court, and how to protect the rights of witnesses. Otherwise the investigation could be inadequate or the integrity of the investigation could be compromised.
• Effective procedures. The integrity problems discussed in this section can be prevented through development of effective operating procedures for investigation and information collection, with the aim of protecting/analyzing evidence and safeguarding the rights of witnesses and suspects.
• Respect for the political and civil rights of witnesses and suspects.
• Timing. The timing of an investigation may have a significant impact on its integrity. If it is initiated in the middle of an election campaign, the investigation may be used as political ammunition by some candidates. Not proceeding when an investigation is warranted could undermine the integrity of the process. The consensus seems to be that the investigation should be undertaken promptly enough so that evidence and witnesses are still available, but without disturbing the electoral process.

According to Craig Donsanto of the U.S. Department of Justice, “Most voting fraud investigations require that individual voters be interviewed concerning the circumstances under which they voted or didn’t vote. … Such interviews should generally not be conducted immediately prior to an election or while voting is taking place. This is because having federal agents interview citizens about the circumstances under which they voted (or did not vote) can easily ‘chill’ lawful voting activity by the interviewees, as well as voters similarly situated. This is not an appropriate result.” [2]

It is important that an investigation not interfere with the conduct of an election or the election results. For instance, U.S. investigators are told that any evidence of election fraud should be protected until the election is over. Once a federal investigation is conducted openly in a matter concerning an election then under way, the investigation will inevitably have a major impact on the election outcome. [3]

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

[2] Donsanto, Craig, “The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, May 8–10, 1996, p. 9.

[3] Ibid.

Duties and Ethical Conduct of Investigators

Investigators’ mandates are usually based on those of their organization and their duties within that organization. If the duties of investigators are clearly defined in the organization’s personnel and procedures manuals, some of the integrity problems associated with under- or over-zealous investigators can be avoided. Most systems have written codes of ethics for investigators since their conduct is an essential part of ensuring integrity in enforcement.

Protecting Integrity in the Performance of Duties

Investigators must ensure that they perform their duties with honour and integrity. To do this, they must:

• Have the necessary jurisdiction to conduct an investigation. If facts are uncovered indicating that the investigation falls under the jurisdiction of another agency, most systems require that agency to be informed and the complainant to be asked to contact the appropriate agency.
• Use only lawful means to collect evidence and information relevant to the investigation. This is required to protect the rights of witnesses or the accused, and the admissibility of evidence.
• Exercise careful judgment in deciding on the most appropriate and effective interviewing methods, keeping in mind the “ethical obligations to act with dignity, fairness, moderation, thoroughness and political impartiality.” [1]
• Protect the civil and political rights of individuals involved in the investigation. This includes informing them of their rights.
• Be respectful when interviewing individuals. With witnesses and others, avoid personal or private discussions that could bring into disrepute the administration of justice. Refrain from asking embarrassing, insulting or abusive questions. [2]
• Respect the privacy rights of individuals by ensuring that all personal information collected about them is relevant to the investigation.
• Inspect election documents relevant to the investigation without tampering with them.
• Investigate within the policy framework of the investigative office, and report findings and concerns objectively to supervisors in a timely fashion.
• Assess the facts objectively to determine whether the alleged offence occurred. Make objective recommendations on what action, including prosecution, should be taken.
• Protect the confidentiality of the investigation. Ensure that personal information, correspondence and other documents related to a case remain confidential and are discussed only with authorized persons. This approach also protects the privacy rights of individuals.

Supervision

Investigators usually work within the chain of command of their organization. A head investigator manages the investigative resources of the agency and is responsible for the planning, organization, execution and monitoring of the investigative process within the agency. [3]

Adequate supervision is essential to ensure integrity in conducting investigations. It also ensures that investigators follow the procedures and work in accordance with the requirements of the system.

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

[2] Ibid.

[3] Ibid.

Decision to Investigate

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 solely for political ends.

To ensure integrity in the complaint review process and in the decision on whether to investigate, complaints need to be reviewed in an objective 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.

Most systems have standard procedures and criteria for determining whether a complaint is valid and should be investigated. Integrity issues arise if the review procedures are discriminatory or allow too much individual discretion.

Valid Complaint

For enforcement to work as a safeguard of electoral integrity, the review process must be able to identify valid complaints and determine whether they merit investigation. 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 a 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 usually fall under national jurisdiction. [1]
• 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. Following well-designed procedures can help ensure that integrity standards are met.

Reasons for Dismissing a Complaint

In most systems, complaints may be dismissed for 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 are usually handled through the oversight procedures of the electoral management body. A mistake that had a significant impact on the outcome of an election is usually challenged by a losing candidate through the complaints and appeals process.

Policy Considerations

Electoral administration policy plays a large role in determining which cases to investigate and which to dismiss. Policy should therefore be fair and non-partisan.

For example, Canada has a standard for determining which cases merit investigation. The standard is set by policy and includes objective indicators. However, it also includes the subjective indicator of “public interest.” Among the public interest factors to be considered are:

• the circumstances, views, reliability and credibility of the complainant, and the specificity of the allegation raised;
• the need to maintain public confidence in the administration of justice and the integrity of the electoral process;
• the prevalence of the type of offence and the need for deterrence devolving from the investigative process or court proceedings;
• the length and expense of a potential investigation in relation to the seriousness of the offence; and
• the availability and efficacy of alternatives to investigation, such as administrative remedies and voluntary compliance measures undertaken by the alleged offender. [2]

Subjective indicators may give room for more discretion in the handling of complaints, allowing investigators to evaluate each case according to its circumstances. Nonetheless, some systems (e.g. Mexico’s) deliberately limit discretion and opt instead for checks-and-balances mechanisms.

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 valid 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 Monitoring of Enforcement.

NOTES

[1] Donsanto, Craig, “The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, May 8–10, 1996, p. 8.

[2] Commissioner of Canada Elections, Investigators' Manual, 2004.

Procedures and Powers of Investigators

An investigation cannot be properly conducted if the investigator is denied access to witnesses, suspects and relevant documents. Investigators need to ensure that they investigate with integrity, that the rights of individuals are protected, and that evidence collected is untainted and admissible in a court of law.

Most systems use the following mechanisms to ensure integrity in the investigative process.

Standard Operating Procedures

Enforcement agencies usually follow standard procedures in conducting investigations. Developing good procedures that are followed by investigators helps ensure that integrity mechanisms are in place for each stage of the process.

Standard procedures also reduce the danger that investigators will make arbitrary or discriminatory decisions, which can give rise to integrity problems.

Accurate Written Reports

Accurate files and reports are essential for integrity. A written file is generally kept for each complaint, with all the information and documents collected. To handle a case, other players in the enforcement system (e.g. prosecutors) rely on the written report describing the evidence collected and the analysis performed by the investigative agency.

A comprehensive written report specifies the alleged offence, the name of the offender and other information gathered during the investigation. The report may also include: an outline of the objectives of any investigation; the scope and focus of the various phases of the investigation; the names of individuals interviewed; the information and evidence obtained, and their sources; and any follow-up measure that might be considered in the decision on how to deal with the alleged offence. [1]

It can be very difficult for a prosecutor to win a case if the information collected during the investigation is incomplete or inaccurately reported.

Appropriate Interviews

The purpose of interviewing witnesses or suspects is to obtain information and evidence. However, the information is admissible in a court of law only if investigators have complied with the procedural requirements that protect evidence and the rights of individuals. Successful interviews are usually prepared in advance. The tone of the interview must be professional, and the focus must be on the matter at issue. A good interview is an important step since it may ensure that the case is prosecuted and results in a conviction.

To avoid misunderstandings and ensure that interviewees know why they are being questioned and who is questioning them, investigators usually show proof of identity and explain the reasons for asking questions. Most systems require the consent of the person to be interviewed, unless he or she is a suspect. Many systems, such as Canada’s, recommend gentle persuasion to obtain the cooperation of witnesses. [2] Investigators are particularly advised to avoid conduct that could be perceived as threatening or as offering favours in exchange for cooperation.

Before questioning, most systems require suspects to be read their rights so that their statement will be admissible in court. Suspects usually have the right to be represented by an attorney during an interview.

Investigators must carefully assess the impartiality and credibility of individuals who may have a bias. As required, they should determine the basis of any bias and counter it through closer questioning. Whenever possible, investigators should obtain corroboration of information from independent sources. [3]

Sworn Statements

It is useful to make sure that critical witnesses (including voters who acted jointly) are questioned under oath and sign their statement before charges based on their testimony are filed. A signed statement protects against any misinterpretation of testimony. It also provides protection should witnesses change their testimony in court. In most trials a sworn statement can be submitted as evidence.

Accurate Interview Notes

It is essential to record in writing the information obtained during the interview, especially if a signed statement is not taken. The notes from the investigation may be used as evidence for what a person said. In court, the defence counsel usually has a right to examine the investigator's notes if the investigator refers to them when testifying.

The integrity of the interview also depends on the accuracy of the notes. Most investigators take word-for-word notes of the interview. In some cases, the interview may be recorded electronically; a recording is much more accurate than handwritten notes but can raise integrity questions. Some systems do not allow taping without prior permission or a warrant.

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

[2] Ibid.

[3] Ibid.

Rights of Individuals in Investigations

Individuals have political and civil rights that must be respected during an investigation. These rights are entrenched in each country’s constitution, legal framework or charter of rights. Although they may vary under different political and legal systems, the basic procedural rights of an individual usually include:

• the right to remain silent;
• the right to legal representation without unreasonable delay;
• the right to protection from unreasonable search or seizure;
• the right to protection from a requirement to furnish self-incriminating documents without court authorization;
• the right to a reasonable time period for deciding whether to waive any rights;
• the right to know the nature of the possible proceedings;
• the right to be informed of the extent and limits of the powers of a person in authority;

Because democratic countries value the rights and freedoms of individuals, infringements of procedural rights could cause any evidence thereby obtained to be inadmissible in a court of law or could even lead to dismissal of the case.

Search Warrants

A search warrant protects individuals from unreasonable search or seizure. Most systems require a warrant to be issued by a judge on reasonable grounds. The warrant describes the place to be searched and the items that may be seized.

To obtain a warrant, the investigator must first submit an application and swear that the information contained in it is accurate. The information must include a detailed description of the alleged offence and the items to be searched for and seized, as well as valid reasons for believing that the items are in the location to be searched. The investigator must also indicate whether there are other sources by which to obtain information or whether all other sources have been exhausted. [1]

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

Handling of Evidence

Protecting the integrity of evidence collected is vital in law enforcement. If the integrity of the evidence is in doubt, its use in legal proceedings could be jeopardized, possibly allowing a guilty person to escape prosecution.

Countries with a history of the rule of law have a framework of rules and procedures stipulating how evidence is to be collected, used and preserved. Evidence is admissible in court only if the rules have been followed. The accused have procedural rights, giving them protection from evidence tampering to manipulate the outcome of an investigation or trial.

To maintain the integrity of law enforcement, it is important that anyone who handles evidence during an investigation know and follow the rules concerning the admissibility of evidence.

Legal Seizure of Physical Evidence

Specific procedures must be followed for obtaining physical evidence. The investigator must first inform the suspect of his or her rights. Most legal systems give suspects the right not to incriminate themselves; they are therefore not required to provide to the investigators information or evidence that could be used against them. If a suspect voluntarily provides requested documents or information even though not required to do so, the investigators are required to make sure that the suspect signs a statement waiving this right. The requirement ensures that suspects understand their rights and cannot later claim to have been deprived of them.

If a person refuses to provide information, investigators may apply to a judge for a search warrant. The warrant allows investigators to search for evidence.

To safeguard their integrity, the documents gathered must usually be identified. In most systems an official receipt is issued to the owner of the documents; that person has the right to keep a copy of the seized papers.

Protection of Evidence

Proper procedures for handling and storing evidence can help ensure that it is not tampered with or lost. Following are procedures used to protect evidence:

• Identify evidence as soon as it is seized. Each piece of evidence is given a specific reference number and described. Also to be noted is the date and time when each piece was seized. A receipt is given to the person who provided the evidence and a copy is kept on file.
• Seal original documents and other evidence in boxes or containers, and use only photocopies for the investigation.
• Keep an inventory of the evidence. The inventory lists the reference number of each piece, the number of the box in which it is locked and the location where the box is stored. Evidence should be stored in a fireproof location with limited and controlled access.
• Keep written records of the handling and movement of evidence, and of the persons who have had access to it. A control sheet should be attached to each piece of evidence, and any activity should be recorded by the person in charge of the location where the evidence is stored. The control sheet should show the date and time when material was removed, the name of the person taking the material, and the reason for the removal. The record must be signed by the person in charge of the storage room and the person taking the material.
• Keep records on the handling of evidence separate from the complaint file.
• Return evidence to the owners at the end of the process. The owners sign a receipt certifying what was returned. They are given a copy of the receipt and the original is kept on file.

Seizure of Electoral Records

Electoral records include the voter registry, applications for absentee ballots, tally sheets or any other document used in an election. They may also include the personnel records of the electoral management body, time sheets, official vehicle logbooks, warehouse inventory books or other documents used for election administration.

The problem with seizing electoral records is that they are usually needed to hold elections. There could be a conflict between the need to collect evidence and the need to retain these documents in order to successfully complete the electoral process.

In the United States, for example, seizing electoral records may deprive state authorities of materials required to tabulate, collect and certify election results. The law prohibits any action that deprives the state of records it needs to perform these tasks. [1]

In other cases, the courts or other institutions may determine whether an allegation is serious enough to compromise the entire electoral process. In these cases, the need to ensure the integrity of the process through an immediate investigation might take priority over immediate election needs.

NOTES

[1] Donsanto, Craig, “The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, 1996, p. 9.

Investigator's Analysis

The investigator must determine whether the information uncovered in the investigation substantiates the complaint and whether the file should be referred to the prosecutor. This is an important responsibility and the decision should be made objectively, on the basis of facts and the evidence obtained. A biased or sloppy analysis may have a serious impact on integrity, leading perhaps to prosecution of an innocent person or allowing a guilty person to escape justice.

Thorough and Objective Analysis

The evidence collected should undergo comprehensive analysis to determine the facts. During analysis, investigators generally check whether:

• the official records are in the specified format and meet stipulated requirements;
• the official records have been tampered with and, if so, by whom;
• financial statements are supported by receipts, invoices, cancelled cheques, accounting books and bank account statements; and all deposits, withdrawals and corrections are accounted for;
• there are explanations for omissions, discrepancies, anomalies or irregularities;
• the records seem to contain false or misleading information; and
• records were signed by authorized persons, or there seem to be grounds to believe that an unauthorized person provided recorded information (including signatures). [1]

For rejected ballots, investigators usually check whether:

• ballots that should have been cast and counted were rejected as a result of suspicious or illegal activity;
• there is sufficient, reliable and convincing evidence that someone committed an offence or was involved in an illegal activity; and
• further investigation or administrative action should be taken before closing the file or initiating legal proceedings. [2]

Substantiated Findings

In part, analyzing the evidence involves determining whether an offence was committed and whether prosecution should be recommended. The assessment requires an objective review of the facts but in some cases the investigator may have to make a subjective judgment.

Because the analysis will be used to determine whether to initiate legal proceedings, it is important for the investigator to record the findings in a written report. The report enables prosecutors and other enforcement officials to make an informed decision based on factual information. This type of report generally includes a summary of the allegation, details on the identity of the suspect and the complainant, the outcome of the investigation, a list of the events and evidence, and a summary of each offence and the link to the suspects.

The report also usually includes the investigator’s recommendation on whether the investigation should be continued or stopped, plus an assessment of the availability, credibility, competence and reliability of potential court witnesses, as well as mitigating circumstances if any. [3]

If the investigation shows that the allegations are unsubstantiated, generally the case is closed. If the investigation shows that the allegations are substantiated, generally the complaint is referred to the prosecutor’s office.

On reviewing the assessment before referring the case for prosecution, the investigator’s supervisor may find inaccurate or unsupported analysis. To ensure integrity and avoid the possibility that a supervisor might bury a case ready for prosecution, each system should have a mechanism for higher-level review if investigator and supervisor disagree on the recommendation.

Safeguarding the Secrecy of the Vote

When investigators examine electoral documents, including the voter registry, absentee ballots and tally sheets, they must take the measures necessary to maintain the secrecy of the vote. This is especially true in the case of an investigation of possible absentee voting fraud.

Confidentiality

Reports and information from ongoing investigations are usually kept confidential. This is to protect the privacy of witnesses and avoid the destruction of potential evidence, which would make the investigation less effective and weaken public confidence in the administration of justice. [4] Leaking information on an investigation during an election could also affect election results.

In particular, the following information should be kept confidential until the conclusion of an investigation:

• information on evidence collected that could be used in a trial;
• information that could sully the character or reputation of the accused or witness; and
• information that could jeopardize an ongoing investigation or the safety of enforcement officials.

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

[2] Ibid.

[3] Ibid.

[4] Ibid.

Decision to Prosecute

The decision to prosecute is generally made by the prosecution agency or office. This is usually a separate institution from the investigative agency; the separation is part of the checks-and-balances protecting citizens against arbitrary police action.

Enforcement of election integrity requires that the decision to prosecute be made objectively on the basis of a careful review of the case, the weight of evidence and the justification for prosecution.

Objective Review

In deciding whether to initiate proceedings, prosecutors usually undertake a thorough and objective review of the case. The review may consider the following questions:

• Which laws were broken?
• Are the allegations supported by facts, and are there credible, reliable witnesses willing to testify in court?
• Was the intent criminal in nature?
• What are the prospects of obtaining a conviction?

In some systems, prosecutors are elected officials. This can mean that they are sensitive to public opinion and the political implications of particular cases, especially election fraud cases that involve well-known personalities. Although public opinion may sway a prosecutor’s judgment, it may also make the prosecutor more accountable than police or investigators, who are public servants. If voters do not like a prosecutor’s style or work, they can vote him or her out of office at the next election.

Despite the need to satisfy public opinion, prosecutors should strive to be impartial and enforce the law fairly and uniformly. Their review of a complaint and the evidence is supposed to result in an objective assessment of whether prosecution is warranted. In the case of unfair or unwarranted prosecution, recourse is available through the mechanisms provided in the monitoring of enforcement process or through the appeals process.

Public Interest Factors

As discussed in Decision to Investigate, some systems use the criterion of “public interest” in deciding whether a case should be prosecuted. This may be a subjective decision influenced by a country’s social and political context.

For example, Elections Canada decides to prosecute taking into account factors such as the seriousness of the offence, mitigating or aggravating circumstances, the suspect’s degree of responsibility, effective alternatives to prosecution, a prosecution’s possible effect on public order or public confidence in the integrity of the law, the need for deterrence, the available resources, the time limit for initiating a prosecution, the sections of legislation that may be challenged, and the appropriateness of applying the same rules uniformly across the country. [1]

In the United States, prosecutors should keep in mind that society is willing to tolerate certain behaviour in election campaigns that it does not accept in commercial, personal or government dealings. Thus, as a general rule, the crime of “voter fraud” covers only organized efforts to subvert the election process itself —that is, voter registration, the casting of ballots, vote counting and the certification of election results. This definition excludes all activities connected with political campaigning unless those activities are illegal under a specific law (e.g. stealing opponents’ campaign property, breaking into opponents’ offices or violating campaign financing laws). Criminal proceedings are rarely undertaken in response to what candidates do or say during a campaign. [2]

Prosecutors must therefore consider whether administrative action or another approach might be preferable to prosecution.

Alternatives to Prosecution

Prosecution is a last resort in law enforcement. In Canada, the law provides other means, the most important of which are the authority to conclude compliance agreements and the ability to apply for an injunction during an election period. A compliance agreement is a voluntary arrangement between the enforcement agency and the person who has committed an offence, with the aim of achieving compliance with the law. These two measures are used to prevent as well as stop violations. [3]

National or Local Prosecution

Within the judicial system, case jurisdiction is determined primarily by which laws have been broken. In a federal system, where there are national, state and local laws, an election-related offence could involve a violation of both national and state law. Integrity issues may be involved in the decision about which court should handle the case. Will a politically sensitive case be treated more objectively at the national or local level? Will local prosecutors want to be involved in a politically sensitive case that could have major repercussions? Since voter fraud matters are always politically sensitive, local prosecutors (who are usually themselves elected) may hesitate to deal with them. [4]

According to the U.S. Federal Elections Commission, defendants in voter fraud cases are apt to be politicians, or agents of politicians, and it is often impossible for either the government or the defendant to obtain a fair trial in a case that is about politics and is tried before a locally drawn jury. The federal court system provides for juries to be drawn from a broader geographic base, thus often avoiding this problem. [5]

These issues need to be taken into consideration when determining which agency will prosecute the case and which is best placed to ensure that the proceedings are conducted with integrity.

NOTES

[1] Commissioner of Canada Elections, Investigators' Manual, 2004.

[2] Donsanto, Craig, “The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, May 8–10, 1996, p. 1.

[3] Landry, Raymond, “Enforcement of the Canada Elections Act,” Electoral Insight, March 2003, Elections Canada.

[4] “The Federal Crime of Election Fraud,” p. 1.

[5] Federal Elections Commission (U.S.), Filing a Complaint, 1998.

Audits

Audits are valuable safeguards of integrity. They are part of the routine monitoring of the electoral process by the official oversight agency, as well as an investigative tool in suspicious cases or cases involving malfeasance or corruption. Audits help ensure that electoral administrators, political parties and organizations receiving public funds comply with the law and are accountable for their actions. Audits increase transparency of the electoral process by making records and audit reports available to the public. Audits may also facilitate the decision-making process for those responsible for taking corrective measures.

The principle underlying audits is that the persons and institutions entrusted with handling public resources must be held accountable for using those resources efficiently and economically.1 They must also comply with the applicable public funding laws and regulations.

Public officials and others managing public spending must establish and maintain effective controls to ensure that resources are safeguarded, that laws and regulations are followed, and that accurate, reliable data are obtained, maintained and disclosed. These persons must also be accountable to the public and to other levels and branches of government for their use of public resources, and must submit reports at the required time.

The type of audit depends on its objectives. It can be a performance audit, assessing how effective are electoral authorities; it can be a financial audit, examining the accounting books to see how funds were utilized. It can be a combination of the two, or look solely at internal control mechanisms.

Unless legal restrictions or ethical considerations prevent it, audit reports are usually made public.

Performance Audits

A performance audit is an objective and systematic examination with the purpose of providing an independent assessment of the performance of the electoral management or policy-making bodies, the agency that regulates campaign financing, or recipients of public financing, such as candidates and political parties.

Performance audits provide information on how the process functions, identify weaknesses and areas of non-compliance, and make recommendations on how to improve the process. The facts uncovered by an audit may require electoral administrators to take corrective measures and make the process more efficient.

Performance audits may check for efficiency and economic use of resources. The aim is to determine whether the electoral management body and other electoral agencies acquire, protect and use their resources (e.g. personnel, property, space) economically and efficiently. A performance audit is a powerful tool for combatting corruption and mismanagement.

Financial Audits

Economic corruption can become a major cause of integrity problems for an electoral management body, which usually has a large permanent staff, hires thousands of temporary workers, and procures large quantities of electoral equipment and materials. Lucrative contracts may attract offers of kickbacks or provide opportunities for misappropriation of funds. Financial audits, especially those performed on a regular basis, can detect and deter economic corruption and financial malfeasance.

Financial audits determine whether reports prepared by the institution or candidate accurately present the financial position, and whether the accounting is performed in conformity with generally accepted accounting principles.

Financial audits look at financial statements, financial records and banking information. They refer to internal controls to check compliance with regulations governing procurement, bidding, accounting, and reporting on grants and contracts.

Objective and Accurate Audit Reports

To safeguard the integrity of the process, audits should be performed objectively and without interference by other agencies or persons. Audit reports must be accurate and fair, and must include sufficient information to help the organization being audited—as well as oversight agencies and policy makers—understand the situation and determine corrective actions to be taken.

Audits must be carefully documented. An audit report usually describes the objectives and scope of the audit, and the methodology used. It includes findings and recommendations for correcting problems and improving operations. It may also contain recommendations on how to improve administrative controls and enforcement. Supporting documentation is usually attached and available for public inspection. Some systems allow audit reports to be used as evidence in criminal cases, while others do not.

NOTES

[1] Comptroller General of the United States, Government Auditing Standards, 2003 Revision.

Prosecution and Judicial Proceedings

Impunity fosters an atmosphere of unethical behaviour, fraud and corruption. Prosecution ensures that persons suspected of crimes are tried in a court of law and sentenced if found guilty. Prosecution leading to punishment holds offenders accountable for their actions and serves as a deterrent for those who might consider illegal acts.

In most legal systems prosecution is a matter for criminal law, which regulates conduct by individuals and defines crimes and punishments. Most systems treat criminal acts as violations of the public order, and so the government is responsible for prosecuting these acts. Where a case is to be prosecuted is determined by which law was broken and whether it was a national, provincial or local law. The court or judicial body that will hear and decide on the case must have the authority to do so.

Most criminal law systems recognize two types of offences: felonies and misdemeanours. Misdemeanours are lesser offences such as disorderly conduct, minor violations of codes of ethics and petty theft. Most cases of misdemeanour usually involve an appearance before a judge rather than a trial, with the punishment being a fine or a light jail sentence. Felonies are more serious offences, and usually involve arrest and trial.

Integrity in the Administration of Justice

Integrity in the administration of justice is very important for the entire electoral system. Integrity means that laws are equitable and fair. Procedures follow legal rules, and protect civil and political rights. Prosecutors, judges and juries must follow the procedures and maintain the highest level of professional and ethical behaviour. Accused persons must be afforded their procedural rights.

Integrity in the administration of justice ensures that police and other enforcement authorities will not act for political or personal ends, and that the accused have the opportunity to present a defence.

To safeguard integrity in prosecutions and the administration of justice, a number of conditions must be met.

Lawful Arrest and Arraignment

For a suspect to be arrested and charged, there must usually be evidence linking that individual to the offence. Unless the police catch someone in the act, an arrest generally requires an arrest warrant.

In most legal systems, arresting officers read accused persons their rights and ask whether they understand these rights. Within a reasonable time the accused are usually taken to a court to be charged, and may then enter a plea of guilty or not guilty. This process is called arraignment. Speedy arraignment protects against arbitrary arrest, prolonged detention or unethical police tactics.

The judge or court usually determines whether it is necessary for the accused to remain in custody until trial. In many legal systems an accused person is presumed innocent until proven guilty, but the presumption of innocence is not a universal norm. Still, unless the case involves a serious felony or a violent offence, most defendants are freed on bail. Some systems have a separate safeguard mechanism that enables the suspect to challenge the lawfulness of an arrest or detention.

Pre-Trial Disclosure

To ensure a fair trial, most systems allow the defendants and their attorneys access to the evidence that will be used against them in court. In some systems, the defence has the right of access to all evidence collected, whether or not it will be used by the prosecution.

Usually the defence is not given access to the identity of confidential informants, information on confidential police techniques, government classified information, or information that would harm an ongoing investigation if disclosed. All other evidence is usually provided to the defence.

Witness Protection

The rights of the accused usually include the right to confront their accusers in court. This means that witnesses must appear in person and may be cross-examined in public. In countries with a history of violent conflict, some witnesses may be afraid to testify. In these circumstances they must be protected.

Different legal systems offer considerably varying options for protecting witnesses. In Canada, for instance, witness identity may be protected in some cases. In the United States, the witness protection system may include relocation of witnesses and identity changes. Other systems may provide witnesses with armed bodyguards during the trial. In countries with limited resources or where the administration of justice is weak, witness protection may be more problematic.

Avoiding Trial by Press

A delicate balance must be struck between the public’s right to know and the right of the accused to a fair trial. Most countries do not censor the press. Sensational media coverage of a crime may make it difficult to conduct an impartial trial. Some systems sequester the jury during a trial to shield it from influence.

Fair Trial

Due process in most judicial systems requires that serious crimes (felonies) be tried in open court before an impartial judge with jurisdiction in the case. Depending on the system, there may also be an impartial jury. Defendants usually have the right to a speedy and public trial conducted in accordance with established judicial procedures. A public trial increases public confidence and protects the accused (and the general public) from an abusive justice system.

For a criminal offence, the standard for determining guilt is usually that it be proved “beyond a reasonable doubt.” (Civil cases generally use the less strict standard of “preponderance of evidence”.) The standard of proof “beyond a reasonable doubt” is intended to protect the accused from wrongful conviction.

Appropriate Sentencing and Right of Appeal

The accused is usually sentenced upon being found guilty. To be fair, the sentence must fit the seriousness of the crime.

The right of appeal is part of the checks and balances within the judicial system. This mechanism protects the defendant from a biased or flawed judgment. The eligible grounds for appeal are set out in each country’s legal framework and the procedures established by its courts. An appeal can be heard only by a court authorized to review the decisions of a lower court. In some countries, a higher electoral court makes the final ruling on cases involving violations of election law. In other countries, the final ruling is made by a constitutional council or a supreme court.

Rights of the Accused

In addition to the rights of individuals in investigations, persons accused of a crime are entitled to procedural protections applicable to a trial. These usually include:

• The right to counsel. In criminal cases, the accused have a right to a competent lawyer. Some countries’ legal systems require a lawyer to be provided for defendants with low income, especially if charged with an offence that is serious and might entail severe punishment. The accused have the right to confer with their attorney before a police interrogation, during the trial and at any critical stage in the proceedings, such as a preliminary hearing, lineup or appeal. The accused may waive their right to counsel provided they recognize the consequences of this action.
• The right against self-incrimination. The burden of proof in criminal cases is on the prosecution. The accused do not have to supply the police or prosecution with any evidence that could be used against them. The right against self-incrimination protects defendants from being forced to reveal incriminating facts. This deters the use of torture or other means to coerce confessions from the accused.
• The right to information. Accused persons have the right to know what charges have been made against them, to confront the witnesses testifying against them and to have access to the evidence collected against them.
• The right to a speedy and public trial with an impartial judge or jury, in the area where the crime was committed. Along with this, the accused must have enough time to prepare a defence.
• The right to present a defence. The accused must have the opportunity to present facts and evidence, and to cross-examine prosecution witnesses during a trial. The accused also have the right to call independent expert witnesses.
• The right of appeal if the applicable procedural rights were not respected.

Civil Litigation

Criminal law regulates conduct by individuals and is enforced by the government. Civil cases fall under civil codes, which regulate conduct between individuals or private parties. Civil litigation involves a dispute between private parties, with the government providing a forum for its settlement. This may be a hearing before a judge, or trial by jury.

In civil litigation cases, investigators may receive a subpoena and be required to give testimony. They must testify orally unless excused by the court, and they must answer questions to the best of their knowledge. Civil cases are usually decided on a “preponderance of evidence” standard, which is less strict than the standard of proof “beyond a reasonable doubt” applied to criminal cases.

In some systems, violations of election law are brought before a civil court by the electoral management or policy-making body. In South Africa, cases are brought by the Chief Electoral Officer. In other instances, civil suits may be brought by those harmed by the electoral process. For example, a disqualified candidate may sue the electoral management body. A non-governmental organization may sue on behalf of candidates who might have been prevented from running or who received unequal treatment. Political party members may sue their party if it prevented them from running as candidates.

Civil litigation is part of the checks-and-balances system. It provides a mechanism enabling individuals to assert their rights before a court.

Sentences and Penalties

A person found guilty of an offence must be punished in accordance with the law. To be fair, the ruling must fit the seriousness of the offence. Penalties are applied by law enforcement agencies, which often are the courts.

Penalties vary greatly from one electoral system to another. Usually the types of applicable penalties are based on the nature and seriousness of the offence. Penalties are therefore more severe for offences defined as criminal under the penal code and less strict for offences defined as minor under electoral law. The following penalties are typical of those that may be applied for minor offences:

• a warning;
• a prohibition order;
• disqualification of a candidate;
• cancellation of a party’s registration;
• a fine;
• performance of community service;
• performance of the obligation concerned in the offence.

Serious crimes may be punished by imprisonment. Depending on the offence, the convicted felon is generally kept in custody for a set time. Electoral crimes may be punished by the loss of voting rights for a specified time.

Monitoring of Enforcement

One of the issues involved in election integrity is determining who monitors those responsible for enforcing election integrity rules. As with other aspects of the process, enforcement may be tainted by partisan politics, subverted by money or power, rendered ineffective, or marred by errors. To ensure that enforcement plays its role in maintaining election integrity, it must be monitored and supervised, exactly like any other part of the process.

Most legal systems have a control mechanism to ensure that the administration of justice functions as intended. Police departments have an internal affairs office mandated to investigate complaints of police misconduct. Similar mechanisms operate in most prosecution agencies. Some legal systems have judicial inspectors and a mechanism for removing a judge from a case if needed.

Serious cases of judicial abuse or misconduct may result in a judge’s impeachment or removal from office. Impeachment proceedings are usually undertaken by the legislative branch; the power to impeach is one of its checks-and-balances on other branches of government. In cases of systemic abuse, where there is no credible mechanism to investigate complaints, an independent judicial commission may be established.

The control mechanism within a law enforcement agency must examine complaints made against investigators. A supervisor may monitor the number of complaints and analyze their content—for example, determining whether a complaint concerns the methods used by a particular person or is partisan in nature. Systemic problems are usually referred to the internal affairs office, the solicitor general or another official oversight mechanism.

Election observers and monitors also examine enforcement. Observers may be present at all stages of an activity where integrity is at issue. Their task is to ensure that:

• an official investigation is undertaken;
• investigators act impartially, and have the resources and ability to conduct a proper investigation;
• suspects are located, arrested and brought to trial;
• the rights of individuals are respected throughout the process.

Holding a public trial and monitoring the proceedings may promote judicial professionalism and impartiality. Lack of action by judicial authorities, particularly the courts, can be the subject of an investigation reported by an independent and responsible press. Monitoring may also cover the penalty phase to ensure that persons found guilty are punished and that the punishment fits the crime.

Investigating in Difficult Circumstances

Investigating electoral corruption is not easy. Cases may be highly politicized and may implicate well-known politicians; sometimes investigation may be dangerous. Access to witnesses and suspects may be difficult, some documents may disappear, or the investigation might target a high-ranking government official.

Difficulties vary with each country’s social and political context, but they usually involve political interference, physical safety issues, or the lack of legal and judicial infrastructure.

Political Interference

Investigations into electoral fraud may implicate very powerful individuals who seek protection through political interference. This may take the form of threats against investigators or prosecutors to dissuade them from pursuing their investigations. Threats include transferring investigators or prosecutors to another post; denying them professional advancement or even dismissing them from their job; transferring the investigation to another body; reducing government resources provided to the agency conducting the investigation or prosecution; and pressuring other agencies to refuse to cooperate with the investigator or prosecutor.

Proper monitoring of enforcement and a transparent enforcement process can help minimize the risk of political interference.

Lack of Legal and Judicial Infrastructure

Some countries undergoing a transition do not necessarily have the legal and judicial infrastructure required to support an investigation. There may be legislative gaps, with the result that investigators or prosecutors cannot show that a law has been broken even though it is evident that a crime has been committed. They may not have the means to conduct a proper investigation because of lack of personnel, resources or institutional experience. They may arrest an individual, only to find that the prison system cannot keep the person in custody until trial. The court system might be incapable of ensuring an impartial trial.

For instance, in the 1998 Cambodian elections, the National Elections Committee was unsuccessful in its efforts to deal with violence and election law violations. Because the Committee had no law enforcement powers, cases were referred to government authorities but not one was ever prosecuted. This was not surprising given the weak legal system, which previously had proved unable to handle human rights cases effectively. [1]

Building a national judicial system and the necessary infrastructure is a long-term process. Electoral authorities can start by ensuring that their election law and related legislation define the basis for free, fair and competitive elections, and contain provisions for enforcement of the law. In some countries in transition, where there is no history of an independent judiciary, the only way to compensate for gaps in the legal system may be by establishing an electoral commission with wide-ranging powers of the type normally exercised by judicial institutions.

Culture of Impunity

A culture of impunity may hold sway in countries that are in transition or emerging from a history of violent conflict. Such a culture takes root particularly when the law enforcement system is inoperative or virtually non-existent, when people lacking power or influence are arrested and charged while the powerful go free, and when officials have legal immunity.

A culture of impunity breeds corruption and unethical practices. Failure to enforce legislation weakens the integrity of the system and the rule of law. Breaking this cycle is extremely difficult; it requires determination from civil society and strong political will.

Physical Safety

In a culture of impunity without a strong judicial system, honest investigators looking into corruption and criminal activities may become targets for violence or intimidation. Protecting investigators requires not only political will but the support of civil society. Safety mechanisms, such as UN-sponsored international human rights observer missions, may offer temporary support but real change will have to come from within.

NOTES

[1] Neou, Kassie and Gallup, Jeffrey C., “Conducting Cambodia’s Elections,” Journal of Democracy, 10(2), 1999, p. 157.