There are many types of investigations. The media often undertake their own investigations when reporting on allegations of voting fraud or other electoral problems. Non-governmental organizations and national election observers may also investigate problems that they encounter and may gather evidence. They then publicize the problem or hand the evidence to a government prosecutor.
Citizen groups and the media can play an effective role in ensuring that integrity issues are unofficially investigated if lack of political will or resources prevents the holding of an official investigation. Unofficial investigations must respect the rights and privacy of individuals, and must not interfere with official investigations.
Official Investigations
Each country has its own system for investigating complaints about electoral violations. The details of the system are usually set out in legislation and regulations, which mandate a specific agency or agencies to handle these issues.
In many systems, the official investigative mechanism is the police department, working with the electoral management body or oversight agency. In other systems, investigation is the responsibility of a specific office within the electoral management body—for instance, the Commissioner of Canada Elections in Canada.
In federal systems, the investigative body that will handle a case is decided by which law has been broken. For example, in the United States there is an office within the Department of Justice for federal election crimes but individual states handle violations of state law. The national-level Federal Elections Commission investigates violations of campaign financing legislation.
An official investigation seeks to determine whether a crime has been committed, uncover the relevant facts and consider whether the facts indicate who is responsible. If the investigation leads to a reasonable assumption of guilt, the information must be handed to the prosecuting agency. The prosecutor usually determines whether the evidence warrants further action, and who should be charged with what crime.
Investigating with Integrity
Election-related investigations must be conducted to the same high standards of integrity that are expected of electoral administrators and participants. In general, maintaining integrity in an investigation requires:
- Independence. An investigation must be objective and impartial. This is difficult when political pressure is placed on investigators to arrive at a certain outcome. It is easier to maintain objectivity if the investigative agency is not dependent on another agency for direction, resources or personnel.
- Neutrality. The investigative agency should be neutral, as should its investigators. Neutrality may be easier to maintain if the agency is politically independent, and if staff members are public service employees rather than political appointees. Neutrality can also be promoted by requiring individual investigators to disclose potential conflicts of interest in cases under investigation and by ensuring that they do not participate in investigating those cases. In Canada, for example, to maintain public confidence in the neutrality of the Office of the Commissioner, special investigators must not engage in politically partisan activity at the federal level. Special investigators must not work for or on behalf of any federal political party or candidate for federal office, or be associated with any person, body, agency or institution with partisan or political purposes; they must not support or oppose the election of any political party or candidate in a federal election. During a referendum, they must not sit on any referendum committee, or publicly support or oppose any referendum option. [1]
- Jurisdiction. An investigative agency’s jurisdiction over a particular case is determined primarily by which laws have been broken. This can be an issue in a federal system where there are national, regional and local jurisdictions.
- Qualified investigators. Investigators should be professionals who know how to investigate and gather evidence that will be protected and admissible in court, and how to protect the rights of witnesses. Otherwise the investigation could be inadequate or the integrity of the investigation could be compromised.
- Effective procedures. The integrity problems discussed in this section can be prevented through development of effective operating procedures for investigation and information collection, with the aim of protecting/analyzing evidence and safeguarding the rights of witnesses and suspects.
- Respect for the political and civil rights of witnesses and suspects.
- Timing. The timing of an investigation may have a significant impact on its integrity. If it is initiated in the middle of an election campaign, the investigation may be used as political ammunition by some candidates. Not proceeding when an investigation is warranted could undermine the integrity of the process. The consensus seems to be that the investigation should be undertaken promptly enough so that evidence and witnesses are still available, but without disturbing the electoral process.
According to Craig Donsanto of the U.S. Department of Justice, “Most voting fraud investigations require that individual voters be interviewed concerning the circumstances under which they voted or didn’t vote. … Such interviews should generally not be conducted immediately prior to an election or while voting is taking place. This is because having federal agents interview citizens about the circumstances under which they voted (or did not vote) can easily ‘chill’ lawful voting activity by the interviewees, as well as voters similarly situated. This is not an appropriate result.” [2]
It is important that an investigation not interfere with the conduct of an election or the election results. For instance, U.S. investigators are told that any evidence of election fraud should be protected until the election is over. Once a federal investigation is conducted openly in a matter concerning an election then under way, the investigation will inevitably have a major impact on the election outcome. [3]
NOTES
[1] Commissioner of Canada Elections, Investigators' Manual, 2004.
[2] Donsanto, Craig, “The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, May 8–10, 1996, p. 9.
[3] Ibid.
