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.