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 law enforcement 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:
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 politicians. Although public opinion may sway an elected prosecutor’s judgment, it may also make the conclusions of the prosecutor more accountable than the views of police or investigators, who are ordinary public servants. If voters do not like a prosecutor’s style or results, 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
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.
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.[3] 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.
