Mechanisms for Challenging Results
A
mechanism for challenging results is desirable at every stage of the vote
tabulation process. This helps to ensure that the election process is
transparent, that election authorities are accountable, and that the election
outcome is acceptable to all parties (make a reference to GUARDE publication
here).
Aggrieved
parties and candidates must be able to challenge results based on factual
information and are entitled to an independent and fair hearing on the merits
of their case.
In some
jurisdiction more than one institution is charged with adjudicating complaints
a clear delineation is important as to avoid complaints filed with the
incorrect institution, or at both institutions potentially wasting resources
and delaying a verdict.
Effective
mechanisms for challenging results add to the credibility of an election
outcome. If a party to an election is not satisfied that an election has been
properly conducted, the ability to effectively challenge the election result
will ensure that any genuine errors are corrected, and that any fraudulent
activities are identified and dealt with on time.
Conversely,
if concerns are baseless, the process of challenging an election outcome should
provide the public with this information. This will enhance the credibility of
the outcome.
If an
election cannot be challenged to the satisfaction of all parties, then it is
possible that the election outcome will not be accepted, leading to civil or
political tension and violence.
It is
also important that election challenges do not unreasonably delay the election
process. Delays in the formation of parliaments and governments may lead to
civil or political unrest, or exacerbate such if it already exists. Therefore,
if the challenge cannot materially affect the outcome of the results, some
jurisdiction will not pursue such a complaint.
Election
results can generally be challenged in several ways, and at several points in
the process. A complaint often needs to be filed within a specific period of
time and meet certain criteria. The complaint must also be adjudicated within a
set number of days, in order not to delay the certification of results
indefinitely.
Opportunities
for challenging results and the ease with which the challenges are adjudicated
will depend on whether paper ballots, mechanical, or electronic voting are
used.
Challenging Results During the Vote Count
At the
first stage of the counting process for paper ballots, when ballot boxes are
opened, and ballot papers counted for the first time, party and candidate representatives
are often given the right to challenge whether a ballot paper is genuine,
whether a ballot paper is valid or invalid, or whether it has been correctly
sorted to a candidate or party.
The
counting officer in charge of the counting will have the authority to rule on
disputed ballot papers, or ballot papers can be set aside so that a more senior
electoral official can rule on them at a later time.
Similarly,
if ballot papers are recounted at a regional or central counting centre, party
and candidate representatives may again challenge decisions taken during the
count. At this stage, it is usually possible to reverse a decision on a
disputed ballot paper that was made at an earlier count.
Where
mechanical or electronic voting methods are used, political parties and
candidates and observers should have the right to inspect audit trails and any
source documents used, and have the opportunity to challenge any alleged
irregularities.
The
methods of disputing the count at this stage will vary from place to place. In
many cases challenges may be made verbally. In some circumstances, it may be
desirable to have a more formal, written process.
Where
ballot papers are set aside for the decision of a more senior officer at a
later time, these ballot papers should be bundled separately, and clearly
labelled, so that they can be identified later. Also, these bundles of disputed
ballot papers may be kept separate, so that a court or tribunal can rule on
them if necessary.
The
categories of individuals able to challenge a counting decision will vary.
Representatives of candidates and/or parties are often given the right to
challenge the counting process. In some cases, registered voters, local or
international observers may also be given this right.
Recounts by Electoral Bodies
Where
paper ballots are used it is usual to allow candidates and/or political parties
the right to apply for a recount, once counting is completed and a result has
been obtained.
This
means recounting some or all of the ballot papers to satisfy all parties that
the correct outcome has been achieved. Depending on the technology used, it may
also be feasible to recount an electronic ballot by, for example, reprocessing
the original input documents. However, this is not always the case.
Written Requests for Recounts
As
recounts can be time-consuming and expensive, the responsible electoral
official may be given the discretion to decide whether or not to grant a
recount.
Generally,
recounts are only conducted if there is a small difference between the winning
and losing party and/or candidate, and if there is some doubt as to the
accuracy of the count.
In some
jurisdictions, recounts are automatic if the result is within a certain margin.
In some jurisdictions, recounts may be mandatory whenever a result is
challenged, regardless of the margin.
If the
initial result is a tie, it is wise, as a general rule, to automatically
conduct a recount to determine whether any mistakes were made that, if
corrected, could break the tie.
Otherwise,
the definition of a "close" election result will depend on local
circumstances, and the estimated margin of victory in the first count. The most
important consideration is to ensure that all parties are satisfied with the
outcome. If failure to conduct a recount will lead to one or more parties not
accepting the election result, a recount could be recommended.
A
recount can either be a full recount or a partial recount. Depending on the circumstances, it may be
possible to select some categories to recount, rather than conduct a complete
recount. For example, a representative random sample might be chosen to give an
indication of the accuracy of the initial count.
A
recount may be undertaken simply as a check that all ballot papers have been
correctly sorted. Or a recount may involve retracing one or more steps and
conducting the recount as if it were the original count.
Thorough
records of any recounts conducted should be kept. These will be necessary to
satisfy all parties that proper procedure has been followed, and may be needed
if the election result is challenged at a later stage.
There
should be a time limit on applying for a recount. In most cases recounts will
only be permitted within a short time after the completion of counting. For
example, there may be a 24-hour or 48-hour limit.
In some
cases, recounts may be requested only before the official declaration of the
final election result. After that time, recourse may only be permitted to a
court or tribunal.
If the
responsible officer decides not to do a recount, a candidate or party may have
the right to appeal that decision to a higher authority. That authority, such
as a more senior electoral official or the board of the
electoral management body, may in turn decide whether or not to do a recount.
Challenging Election Results before a Court or
Tribunal
After
any administrative recounts are resolved and the electoral authority has
officially declared the election result, there may be further opportunity to
challenge the election result by appeal to a court or a special election appeal
tribunal.
Some
jurisdictions establish special electoral tribunals or courts specifically
during election periods.
A
challenge to a court or tribunal is generally made in a formal legal petition.
Challenges may be made by candidates, parties, and persons eligible to vote in
the election, or by the electoral administration. Those mounting a challenge
usually have to argue a case for challenging an election result.
There
will generally be a time limit on challenging election results before a court
or tribunal. This limit is usually longer than that applying to an
administrative recount, as the legal nature of court or tribunal proceedings
require greater preparation. In addition, the court or tribunal may be required
to hand down its decision within a specified time.
At this
stage, any aspect of the election may be questioned, including:
- the accuracy of the voter's list,
- whether voters were intimidated, bribed, or prevented
from voting,
- whether electoral officers acted in a biased, partisan
way,
- whether candidates or parties acted improperly,
- whether candidates were eligible to be elected,
- whether votes were fraudulently cast, or
- whether there were any errors or irregularities in the
vote counting process.
- whether any technology used in the electoral process and more
narrowly the results management system malfunctioned or was compromised in some
way
Some jurisdictions limit the petition to a judicial body to complaints
or appeals that affect the result only. Then the complainant or applicant will
be required to show that their complaint would have an effect on the result of
the election.
Courts or tribunals considering disputed elections may
have the power, given to them by legislation, to examine ballot papers and
other election documents, or order audits and recounts of ballot papers. They
are usually given the power to decide to confirm the original election result,
or to overturn the election result and declare a different result. They may
also have the power to order that another election must be held.
Courts and tribunals may be bound by precedents set by
previous election challenge rulings. To maintain the integrity of the electoral
process, it is important to consistently interpret electoral laws. In
particular, each electoral system will have a set of rules defining acceptable
marks that may be used on ballot papers and other crucial parts of the
electoral process.
In some
cases it may be possible to appeal against the decision of a court or tribunal
to a higher authority. In other cases, statutes specify that there cannot be
appeals against the decision of an election court or tribunal. This helps to
prevent election results and the formulation of parliaments and governments
being unduly delayed by legal processes.
How Long should Election Materials be Kept?
As a
minimum, relevant electoral materials should be securely stored until the last
opportunity for challenging an election result has passed. In some cases, this
may mean storing electoral materials for the entire life of a parliament.
In
other cases, electoral materials may be destroyed, once the time for
challenging a result before a court or tribunal has passed, or if a challenge
has been lodged, after the challenge has been finally dealt with. Some
jurisdictions provide a legislated limit on the period of time that election
material should be kept. The minimum period for maintaining election material
is normally about six months.
Only
materials relevant to an election outcome need be kept. This will usually
include ballot papers, voters' lists, any declarations completed by voters,
election results, and any records related to disputed results. If in doubt, it
is better to store materials rather than destroy them. However, any materials
that may put the anonymity of the voters at risk should be destroyed.
Any
stored materials must be kept secure from tampering and the principle of chain
of custody upheld. Ballot papers that may be recounted at a later time cannot
be relied upon if the responsible body cannot be sure that they have not been
tampered with.
Note
that the archival of electronic records is highly specialised and that, without
proper provisions for such storage, electronic data has a very short lifespan.
Once
the decision to destroy electoral materials is taken, the responsible electoral
management body should ensure that the materials are destroyed appropriately.
Any electoral materials that might identify the preferences of an individual
voter should be destroyed in such a way as to keep that individual's vote
secret. If possible, paper materials should be recycled. Financial and
ecological considerations are also important, as some material could be
hazardous in large quantities, such as indelible ink containing silver nitrate.
Election Challenges and the Political Process
Election
challenges can be quite disruptive to the electoral and political processes.
They can delay the finalization of election results, which in turn can delay
the first meeting of the new parliament and the formation of a government.
This
situation can destabilize a sensitive political environment, and lead to civil
unrest. For these reasons, it is important that election challenges are dealt
with quickly, efficiently, and with maximum transparency and accountability.
This requires proper planning, allocation of significant resources, staff training, a robust public information
campaign, and an effective public relations strategy.
The
election process is aimed at electing representatives to parliaments or other
posts that reflect the wishes of the people who voted for them. The processes
for challenging election results should be aimed at ensuring that the wishes of
the people are accurately reflected in the outcome, which requires that
challenges be professionally adjudicated in a timely manner.
