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.