The opportunity to make a
complaint or appeal is an important safeguard of election integrity. Some
candidates and parties may refuse to accept defeat, and make unsubstantiated
charges of fraud or tampering. Other candidates may have valid grounds and
plausible evidence to justify a complaint.
Election integrity requires
that the election management body and the justice system be willing to
effectively address complaints without undue delay. (That being said, not all
electoral disputes – especially concerning campaign matters – can be
effectively resolved within the time available; so many appeals can only be
decided after preliminary election results have already been published.)
Electoral integrity also assumes that the complainant be willing to use the
official complaints mechanisms and abide by the resulting decision.
In Ethiopia’s 2005 elections, the system for
processing grievances was overwhelmed by the very large volume of complaints
filed. In a climate of violence, the ruling party reached a consensus with
opposition parties on an emergency measure to resolve the conflict and
legitimize the results. It may have been possible to avoid this situation with a
practical, simple and transparent system suited to the context of the country.[1]
Administrative
Reviews
The electoral management or
policy-making body may have the authority to review complaints, usually by the
body at the next-higher level than that which took the action complained
of. This is usually a first step in the
process. An internal review is part of the internal checks of most electoral
administrations, and may examine a complaint related to any election operation,
including candidate and voter registration, voting or the count. In most
systems, complaints about non-operational issues, such as civil matters or criminal
activities, are referred to the relevant branch of the justice system, or to
regulatory agencies with jurisdiction.
The institutions responsible
for settling complaints and hearing appeals differ according to each country’s
electoral and judicial system. In some systems, the electoral management or policy-making
body is mandated to receive complaints and hear appeals. In other systems the
task is given to a specialized court, such as an electoral court. In Denmark,
the legislature exercises this responsibility. Under the Danish constitution,
the Folketing (Parliament) determines
the validity of the election of its members and is the sole judge in matters of
eligibility.[2]
In contrast, in South Africa
complaints are first filed with the Electoral Commission and appeals are heard
by the Electoral Court.
Most Commonwealth countries continue the rule, established under the UK
Representation of the People Act, that an election can only be challenged
through a petition filed at the conclusion of the process. While in the UK
itself, these challenges are submitted to the regular courts, in other
Commonwealth countries, such as Nigeria,
they are directed instead to specialized election tribunals.
In Ireland,
the result of a presidential election may be challenged only by a post-election
petition to the High Court, presented by the Director of Public Prosecutions, a
candidate or the agent of a candidate in the election. When hearing an election
petition, the High Court must determine the correct result of the election and
may order a recount for this purpose.
Recounts
A recount is usually held if a
candidate or party challenges the vote count on the grounds that there is
reason to believe that the count was materially inaccurate. It may be that
ballots were improperly counted or rejected, or that election officers improperly
carried out the tabulation of results.
Some electoral jurisdictions provide
for an automatic recount of a close election. In Canada,
an automatic recount is performed if the two leading candidates are separated
by less than a thousandth of the votes cast in an electoral district. The
returning officer makes a request to a judge for a judicial recount and
notifies the candidates in writing. Citizens may also apply to a judge for a
judicial recount by submitting an affidavit within four days of the official
count.
To safeguard integrity, a
recount is ideally performed with as little delay as possible. This is to
ensure that ballots are not destroyed or tampered with before the recount.
Monitors and observers usually are entitled to be present at the recount.
Appeals
To ensure integrity in the
review process, the decision of the highest electoral management body is
generally subject to appeal. This enables the complainant to seek a review of
the decision with a separate higher-level institution, such as a constitutional
or supreme court. The appeals process serves as a check on the decisions made
in the initial review with the electoral administration, and may deter
arbitrary or biased decision making.
Subsequent appeals from
decisions about complaints are part of the checks and balances on decisions
made by a lower court or after administrative review of a complaint. Each
system handles appeals differently, according to its legal and institutional
framework, but it is important to have a straightforward procedure that allows
review of lower-level decisions in a systematic, neutral and timely manner.
[1] The Carter Center, Final Statement on the Carter Center
Observation of the Ethiopia 2005 National Elections, September 2005
[2] Folketing (Danish Parliament),
“Parliamentary Elections and Election Administration in Denmark”, op. cit.
