International law establishes the fundamental right to
genuine elections but, “international law does not provide a great deal of
guidance on the interaction between the counting process and fundamental rights.”[i]
It is up to the national legal framework to
ensure that all votes are counted accurately, fairly, equally and
transparently. As a result, there is a
great variation among specific vote counting procedures. (Note: The text in
this section considers several sources but relies heavily upon the vote
counting discussion in International IDEA’s, International Electoral
Standards: Guidelines for Reviewing the Legal Framework of Elections).
A fair, honest and transparent vote count is an essential component of
democratic elections. This implies that votes be counted, tabulated and
consolidated in the presence of representatives of political parties,
candidates and election observers, and that the whole process through which the
winners are determined is fully open to public scrutiny. Therefore the legal framework itself must ensure the right of presence
for such representatives during the counting, tabulation and consolidation of
votes.[ii] In fact, the HRC, “specifies that
ballots should be counted in the presence of candidates and their agents.”[iii]
Votes are most often counted immediately following the
close of voting at each voting place. However, it is not unusual that special counting centers may be
established in order to provide a more secure, controlled and highly supervised
environment. One other advantage to
counting centers depending on the circumstances is that, “through the mixing of
ballot papers from different polling stations, (counting centers) can address concern
that retribution may be taken against voters where the results of individual polling
stations are known.”[iv]
Regardless of whether votes are counted at the polling
station or at a special counting center, representatives of political parties
and candidates and election observers must be allowed to be present during this
process. This is especially important
where special counting centers are established because, “The transportation of
ballot papers between centres of voting and counting is a potential source of
suspicion and fraud.”[v]
Besides ensuring the presence of these stakeholders
during vote counting, the legal framework should include safeguards when
technological devices are used during counting. The legal framework may provide
the possibility for independent verification of the reliability and accuracy of
the equipment and software used for counting. Whether the counting is manual,
mechanical or electronic, revising processes are necessary in order to ensure
reliability and accuracy. The law must also establish means of challenging the
counting procedures, including objections relating to the criteria used to
determine the validity of ballots.
The
legal framework must also clearly indicate the formula that will be used to
convert votes into seats. The thresholds, quotas or other details of the
electoral formula used should be stated clearly, and any other possibility, such as a tie,
withdrawal or death of a candidate must be addressed.
Clear criteria should be
established for determining the validity or invalidity of ballots. The rules
for determining the validity of ballots to be counted should not be so severe
as to result in an unreasonable exclusion of voters. The core principle should be
that if the voter's intention is clear, the ballot must be counted. For example,
“The adoption of overly
strict rules for determining the validity of ballots, for example, requiring
that a ballot with a check mark rather than a cross next to the chosen candidate
be disqualified can work against illiterate or poorly educated voters.”[vi] Or it may be added, the careless voter or
voter in a hurry. It is particularly
important that the law clearly sets out what is and is not a valid ballot
especially when considering that in many cases the count of the local voting
place officials is determinative often final subject only to judicial
appeal. As such, training of local
counting officials is also critical.
The legal framework should also clearly
specify, where possible, that certified copies of the results are provided to
the representatives of parties and candidates and to election observers. The
law should also specify which bodies or authorities shall be entitled, if
applicable, to receive this information before the competent election authority
issues the certified results.
The legal framework has to set, in clear and
objective language, the procedures for transmitting or transferring the
certified copies of the results, ballot papers and other election materials
from the polling stations to the various offices of the electoral authority for
consolidation and safeguarding. It is important that the law requires that the
tabulation or consolidation of every vote count be available in a format that
allows representatives of parties and candidates and election observers to
record and keep track of vote counting from the polling stations until its
final consolidation through the different levels.
The tabulation for any polling station must
provide detailed information on the number of ballots used, the blank ballots,
spoiled or invalid ballots, and the number of votes obtained by each party or
candidate. This information can be broken down according to the different
voting methods used, such as voting by mail or by mobile devices, where this
can be done without compromising ballot secrecy. The information at this level
of detail is necessary to enable the representatives of parties and candidates
and election observers to track and control for results and to determine
accurately, in case fraud or irregularity have occurred, where figures were
illegally altered during the process of consolidation of results.
In many cases, the opportunity to publish the
results may be key to its acceptance by all contenders. Therefore, the legal
framework must provide for the timely publication of the results, and indicate
whether the electoral authorities may announce partial or preliminary results
before the final certification. If results can be announced prior to the final
certification, the legal framework should clearly regulate the manner of making
such announcements. With the exception of restrictions indicated by the
existence of several time zones, the media and representatives of parties and
candidates should be free to publish the results of the election. It is
typically the president of the polling station, in case of counting at that
level, or the director of elections at the highest level of the EMB, who
announce the results of the count. It is common for countries comprising more
than one time zone to impose certain restrictions on the dissemination of
results before all polls have closed.
It is desirable that the legal framework
requires that all relevant counting documents, such as tabulation or tally
sheets and generally documents containing decisions that influence the outcome
of the election be publicly accessible. Such documents can be posted in public
places at all levels of the election administration, from the polling station
to the various levels of the electoral body. Detailed tabulations of the
overall results, including results by polling station, can be posted in each
electoral office. They may also be published in state-owned or state-controlled
print media and, if possible, on the website of the electoral body, as soon as
the final results are certified.
To prevent any kind of fraud, it is also recommended that the legal
framework require posting of formats or documents in public places showing the
counting and tallying of votes in each of the levels where these operations
were carried out. The possibility of fraud is present to the extent that there is
no requirement for election authorities to publicly display the results of
tallies and tabulations.
The legal framework must clearly specify the period within which the
final certification of the election results and the corresponding certification
process must take place, including notifications or announcements to candidates
on their election and term of office. In addition, the law should clearly
specify under what conditions a recount or new election can be conducted in one
or all of the polling stations. The law should clearly state who can request a
recount or a new election, the deadline and procedure for doing so, the
deadline for adjudicating on the request and the date and procedures that, if
applicable, must govern the recount or a new election. When using some sort of
technological device for counting or tabulating, the law should clearly
indicate exactly what the recount will entail, for example, if all data will be
reintroduced, if a parallel manual count will be conducted, etc.
The legal framework must provide for secure storage of all ballots and
electoral materials until the deadline to challenge the certified results has
passed, or in case a challenge is made, until a final judgment is pronounced.
In extreme circumstances, the publication of election results at the
polling station level could jeopardize the security of voters or polling
officials. This possibility exists in those cases where the election takes
place after a civil war or in societies marked by sharp conflicts where
tensions prevail. Under extreme circumstances, the law may provide exceptional
measures regarding the local publication of results in order not to jeopardize
the voters.
[i] DRI and The Carter Center, Strengthening International Law, 43.
[ii] International IDEA, International Electoral Standards, 77.
[iii] DRI and The Carter Center, Strengthening International Law, 46.
[iv] European Commission, Handbook for European Union Election
Observation, 82.
[v] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 26.
[vi] UN, Women & Elections, 72.
