When a complaint is received or an alleged offence reported, a decision must be made whether to investigate. Important integrity issues are raised by the possibility of an investigation launched in response to a complaint that might be unsubstantiated or pursued solely for political ends.
To ensure integrity in the complaint review process and in the decision on whether to investigate, complaints need to be reviewed in an objective and timely manner. Reviewing means examining whether a complaint is credible, whether there are grounds to think that a law has been broken and whether an investigation is likely to identify the offender.
Most systems have standard procedures and criteria for determining whether a complaint is valid and should be investigated. Integrity issues arise if the review procedures are discriminatory or allow too much individual discretion.
Valid Complaint
For enforcement to work as a safeguard of electoral integrity, the review process must be able to identify valid complaints and determine whether they merit investigation. Following are some of the factors used to determine whether a complaint is valid and which agency has jurisdiction over the investigation.
- Substance. Does the substance of the complaint suggest that an offence has been committed and that it is serious enough to warrant an investigation?
- Violation. Has a law been broken and, if so, which one? Is it a civil or criminal matter? Has a national law been broken, warranting a central or federal investigation, or is it a regional or local issue?
- Scope. Is the violation an isolated act or is it the outcome of an organized effort to subvert the electoral process? Widespread systemic problems usually fall under national jurisdiction. [1]
- Evidence. Is there enough factual information in the complaint to provide leads for investigators to pursue? Is it reasonable to think that these facts could be verified through an investigation? Are the witnesses credible and willing to cooperate?
Most systems have developed detailed procedures for evaluating a complaint, including a timeline for responding to the complainant. Following well-designed procedures can help ensure that integrity standards are met.
Reasons for Dismissing a Complaint
In most systems, complaints may be dismissed for the following reasons:
- The allegations are anonymous and the matter is not serious enough to warrant investigation.
- The allegations are vague or frivolous, and further investigation appears unlikely to provide more conclusive information.
- No laws or regulations appear to have been broken.
- The allegations appear to be well-founded but an investigation would not help to identify the offenders, or there is not enough evidence.
- The evidence indicates that there was no intent to violate the law.
- The complaint was filed after the stipulated deadline.
Instead of being prosecuted, mistakes are usually handled through the oversight procedures of the electoral management body. A mistake that had a significant impact on the outcome of an election is usually challenged by a losing candidate through the complaints and appeals process.
Policy Considerations
Electoral administration policy plays a large role in determining which cases to investigate and which to dismiss. Policy should therefore be fair and non-partisan.
For example, Canada has a standard for determining which cases merit investigation. The standard is set by policy and includes objective indicators. However, it also includes the subjective indicator of “public interest.” Among the public interest factors to be considered are:
- the circumstances, views, reliability and credibility of the complainant, and the specificity of the allegation raised;
- the need to maintain public confidence in the administration of justice and the integrity of the electoral process;
- the prevalence of the type of offence and the need for deterrence devolving from the investigative process or court proceedings;
- the length and expense of a potential investigation in relation to the seriousness of the offence; and
- the availability and efficacy of alternatives to investigation, such as administrative remedies and voluntary compliance measures undertaken by the alleged offender. [2]
Subjective indicators may give room for more discretion in the handling of complaints, allowing investigators to evaluate each case according to its circumstances. Nonetheless, some systems (e.g. Mexico’s) deliberately limit discretion and opt instead for checks-and-balances mechanisms.
Determining Case Priority
Policy also determines the priorities for investigation. It takes much time and effort to investigate allegations of voter fraud. Some investigative agencies do not have the human or financial resources to investigate every valid complaint. Integrity issues may arise if there are no objective criteria by which to set priorities for investigation, with the task left to the discretion of individual investigators or officials responsible for enforcement. These may be suspected of “burying” cases likely to have political ramifications or of giving priority to cases that are relatively unimportant.
These types of integrity issues can be addressed effectively through monitoring and oversight of the enforcement process, as discussed in Monitoring of Enforcement.
NOTES
[1] Donsanto, Craig, “The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, May 8–10, 1996, p. 8.
[2] Commissioner of Canada Elections, Investigators' Manual, 2004.
