Mechanisms for Challenging Results
A mechanism for challenging results is desirable at every stage of the vote tabulation process. This helps to ensure that the election process is transparent, that election authorities are accountable, and that the election outcome is acceptable to all parties (make a reference to GUARDE publication here).
Aggrieved parties and candidates must be able to challenge results based on factual information and are entitled to an independent and fair hearing on the merits of their case.
In some jurisdiction more than one institution is charged with adjudicating complaints a clear delineation is important as to avoid complaints filed with the incorrect institution, or at both institutions potentially wasting resources and delaying a verdict.
Effective mechanisms for challenging results add to the credibility of an election outcome. If a party to an election is not satisfied that an election has been properly conducted, the ability to effectively challenge the election result will ensure that any genuine errors are corrected, and that any fraudulent activities are identified and dealt with on time.
Conversely, if concerns are baseless, the process of challenging an election outcome should provide the public with this information. This will enhance the credibility of the outcome.
If an election cannot be challenged to the satisfaction of all parties, then it is possible that the election outcome will not be accepted, leading to civil or political tension and violence.
It is also important that election challenges do not unreasonably delay the election process. Delays in the formation of parliaments and governments may lead to civil or political unrest, or exacerbate such if it already exists. Therefore, if the challenge cannot materially affect the outcome of the results, some jurisdiction will not pursue such a complaint.
Election results can generally be challenged in several ways, and at several points in the process. A complaint often needs to be filed within a specific period of time and meet certain criteria. The complaint must also be adjudicated within a set number of days, in order not to delay the certification of results indefinitely.
Opportunities for challenging results and the ease with which the challenges are adjudicated will depend on whether paper ballots, mechanical, or electronic voting are used.
Challenging Results During the Vote Count
At the first stage of the counting process for paper ballots, when ballot boxes are opened, and ballot papers counted for the first time, party and candidate representatives are often given the right to challenge whether a ballot paper is genuine, whether a ballot paper is valid or invalid, or whether it has been correctly sorted to a candidate or party.
The counting officer in charge of the counting will have the authority to rule on disputed ballot papers, or ballot papers can be set aside so that a more senior electoral official can rule on them at a later time.
Similarly, if ballot papers are recounted at a regional or central counting centre, party and candidate representatives may again challenge decisions taken during the count. At this stage, it is usually possible to reverse a decision on a disputed ballot paper that was made at an earlier count.
Where mechanical or electronic voting methods are used, political parties and candidates and observers should have the right to inspect audit trails and any source documents used, and have the opportunity to challenge any alleged irregularities.
The methods of disputing the count at this stage will vary from place to place. In many cases challenges may be made verbally. In some circumstances, it may be desirable to have a more formal, written process.
Where ballot papers are set aside for the decision of a more senior officer at a later time, these ballot papers should be bundled separately, and clearly labelled, so that they can be identified later. Also, these bundles of disputed ballot papers may be kept separate, so that a court or tribunal can rule on them if necessary.
The categories of individuals able to challenge a counting decision will vary. Representatives of candidates and/or parties are often given the right to challenge the counting process. In some cases, registered voters, local or international observers may also be given this right.
Recounts by Electoral Bodies
Where paper ballots are used it is usual to allow candidates and/or political parties the right to apply for a recount, once counting is completed and a result has been obtained.
This means recounting some or all of the ballot papers to satisfy all parties that the correct outcome has been achieved. Depending on the technology used, it may also be feasible to recount an electronic ballot by, for example, reprocessing the original input documents. However, this is not always the case.
Written Requests for Recounts
As recounts can be time-consuming and expensive, the responsible electoral official may be given the discretion to decide whether or not to grant a recount.
Generally, recounts are only conducted if there is a small difference between the winning and losing party and/or candidate, and if there is some doubt as to the accuracy of the count.
In some jurisdictions, recounts are automatic if the result is within a certain margin. In some jurisdictions, recounts may be mandatory whenever a result is challenged, regardless of the margin.
If the initial result is a tie, it is wise, as a general rule, to automatically conduct a recount to determine whether any mistakes were made that, if corrected, could break the tie.
Otherwise, the definition of a "close" election result will depend on local circumstances, and the estimated margin of victory in the first count. The most important consideration is to ensure that all parties are satisfied with the outcome. If failure to conduct a recount will lead to one or more parties not accepting the election result, a recount could be recommended.
A recount can either be a full recount or a partial recount. Depending on the circumstances, it may be possible to select some categories to recount, rather than conduct a complete recount. For example, a representative random sample might be chosen to give an indication of the accuracy of the initial count.
A recount may be undertaken simply as a check that all ballot papers have been correctly sorted. Or a recount may involve retracing one or more steps and conducting the recount as if it were the original count.
Thorough records of any recounts conducted should be kept. These will be necessary to satisfy all parties that proper procedure has been followed, and may be needed if the election result is challenged at a later stage.
There should be a time limit on applying for a recount. In most cases recounts will only be permitted within a short time after the completion of counting. For example, there may be a 24-hour or 48-hour limit.
In some cases, recounts may be requested only before the official declaration of the final election result. After that time, recourse may only be permitted to a court or tribunal.
If the responsible officer decides not to do a recount, a candidate or party may have the right to appeal that decision to a higher authority. That authority, such as a more senior electoral official or the board of the electoral management body, may in turn decide whether or not to do a recount.
Challenging Election Results before a Court or Tribunal
After any administrative recounts are resolved and the electoral authority has officially declared the election result, there may be further opportunity to challenge the election result by appeal to a court or a special election appeal tribunal.
Some jurisdictions establish special electoral tribunals or courts specifically during election periods.
A challenge to a court or tribunal is generally made in a formal legal petition. Challenges may be made by candidates, parties, and persons eligible to vote in the election, or by the electoral administration. Those mounting a challenge usually have to argue a case for challenging an election result.
There will generally be a time limit on challenging election results before a court or tribunal. This limit is usually longer than that applying to an administrative recount, as the legal nature of court or tribunal proceedings require greater preparation. In addition, the court or tribunal may be required to hand down its decision within a specified time.
At this stage, any aspect of the election may be questioned, including:
Some jurisdictions limit the petition to a judicial body to complaints or appeals that affect the result only. Then the complainant or applicant will be required to show that their complaint would have an effect on the result of the election.
Courts or tribunals considering disputed elections may have the power, given to them by legislation, to examine ballot papers and other election documents, or order audits and recounts of ballot papers. They are usually given the power to decide to confirm the original election result, or to overturn the election result and declare a different result. They may also have the power to order that another election must be held.
Courts and tribunals may be bound by precedents set by previous election challenge rulings. To maintain the integrity of the electoral process, it is important to consistently interpret electoral laws. In particular, each electoral system will have a set of rules defining acceptable marks that may be used on ballot papers and other crucial parts of the electoral process.
In some cases it may be possible to appeal against the decision of a court or tribunal to a higher authority. In other cases, statutes specify that there cannot be appeals against the decision of an election court or tribunal. This helps to prevent election results and the formulation of parliaments and governments being unduly delayed by legal processes.
How Long should Election Materials be Kept?
As a minimum, relevant electoral materials should be securely stored until the last opportunity for challenging an election result has passed. In some cases, this may mean storing electoral materials for the entire life of a parliament.
In other cases, electoral materials may be destroyed, once the time for challenging a result before a court or tribunal has passed, or if a challenge has been lodged, after the challenge has been finally dealt with. Some jurisdictions provide a legislated limit on the period of time that election material should be kept. The minimum period for maintaining election material is normally about six months.
Only materials relevant to an election outcome need be kept. This will usually include ballot papers, voters' lists, any declarations completed by voters, election results, and any records related to disputed results. If in doubt, it is better to store materials rather than destroy them. However, any materials that may put the anonymity of the voters at risk should be destroyed.
Any stored materials must be kept secure from tampering and the principle of chain of custody upheld. Ballot papers that may be recounted at a later time cannot be relied upon if the responsible body cannot be sure that they have not been tampered with.
Note that the archival of electronic records is highly specialised and that, without proper provisions for such storage, electronic data has a very short lifespan.
Once the decision to destroy electoral materials is taken, the responsible electoral management body should ensure that the materials are destroyed appropriately. Any electoral materials that might identify the preferences of an individual voter should be destroyed in such a way as to keep that individual's vote secret. If possible, paper materials should be recycled. Financial and ecological considerations are also important, as some material could be hazardous in large quantities, such as indelible ink containing silver nitrate.
Election Challenges and the Political Process
Election challenges can be quite disruptive to the electoral and political processes. They can delay the finalization of election results, which in turn can delay the first meeting of the new parliament and the formation of a government.
This situation can destabilize a sensitive political environment, and lead to civil unrest. For these reasons, it is important that election challenges are dealt with quickly, efficiently, and with maximum transparency and accountability. This requires proper planning, allocation of significant resources, staff training, a robust public information campaign, and an effective public relations strategy.
The election process is aimed at electing representatives to parliaments or other posts that reflect the wishes of the people who voted for them. The processes for challenging election results should be aimed at ensuring that the wishes of the people are accurately reflected in the outcome, which requires that challenges be professionally adjudicated in a timely manner.
