Original question:

This question was posed by an ACE user through the "Ask a question" function in Electoral Advice.

I have a question relating to provisions on retention of election materials.

According to USA federal code 42 USC 1974, some types of election materials must be held for a period of 22 months after the election. Do other countries have similar provisions? Or are data retention provisions implied by the country's recount or electoral dispute resolution provisions? Any pointers to relevant laws or regulations would be very useful.

Also, to clarify further, I am not interested in extenuating circumstances which could cause an EMB to preserve or divulge election materials well after they legally required, only in the length of time they are required by law to retain their materials. Thank you in advance.

Summary of responses:

Posted on 09 August, 2007

There are several arguments for Electoral Management Bodies to preserve sensitive election materials after each election, not only because of the possibility of electoral disputes, but also for reference, archiving, research and institutional memory purposes. According to Phil Green and Louise Oliver, the lead writers of the “Vote Counting” topic area in the ACE Encyclopaedia, it is advisable for EMB’s to keep relevant electoral material as long as there exists an opportunity to challenge the election result. At its extreme, this implies storing materials for the whole term of parliament. However, materials that are not relevant to the election outcome might not be needed to store. Nonetheless, materials such as ballot papers, voters' lists, any declarations completed by voters, election results, and any records related to disputed results would all count as relevant to the election outcome.

Ayman Ayoub states that electoral laws often require sensitive materials to be kept for a given period of time, usually about a few months. In many cases, the time requirement is related to the time frame of electoral dispute procedures. Green and Oliver note that the minimum time period for maintaining election material is normally about six months but that electoral materials may be forfeited once the time for disputing a result before a court has passed, or if a dispute has risen, after the dispute has been solved. For example of time frames for the retention of election materials, see the table below.

However, Ayoub points out that many electoral challenges become the subject of an ordinary legal action before the courts, once the actual electoral resolution of such disputes is finished. The disputes may also be handled by other institutions, such as the legislature or a constitutional council. According to Ayoub, “this means that the relevant litigation procedures and their length in time and deadlines would obviously exceed the limits of electoral legislation, as such periods are established in other legal instruments.”

As such, it is advisable for EMB’s to preserve sensitive material not only for the time of pure electoral disputes, but also as long as there exist any legal cases related to the election before the courts or other relevant bodies. As put by Ayoub, EMB’s are recommended not to destroy any relevant material as long as “a judicial case that originates from an electoral dispute has not been resolved through a final and binding judicial ruling that is not subject to any other possible appeal procedure […]”.

If electoral material is found to no longer be needed (for any of the above reasons) and a decision has been taken to forfeit the material, there might be specific procedures related to the destruction of materials. According to Debashis Sen, this is the case in India.

Finally, it is advisable for EMB’s to make sure that all electoral materials related to individual voters are destroyed in a way that ensures the secrecy of the vote. If possible and if security allows, paper materials should also be recycled.

Examples of legal provisions to preserve electoral material for a given period of time:

* See Part H of the Commission’s Parliamentary guidance manual at http://www.electoralcommission.org.uk/about-us/guideukparl.cfm

As stated above, legal processes outside the pure electoral sphere might influence the need to preserve of election materials. An example of this can be found in the US, where in 2006 a judge ordered Ohio’s county elections boards to preserve the ballots from the 2004 presidential elections, despite them already being kept for the 22 months required by law. More information regarding this can be found in an article from The NY Times.

Replies were received, with thanks, from:

• Kate Sullivan
  
• Ayman Ayoub 
  
• Debashis Sen
• Alan Wall

Links to the ACE Encyclopaedia and other related resources: 

ACE Encyclopaedia: Judicial recounts
ACE Encyclopaedia: Challenging results
Practitioner’s Network: Access to ballots for recount

Individual answers in full

In the UK there are provisions relating to what materials must be preserved and for how long after elections. The time period can be different depending on the institution being elected.  The arrangements for UK Parliamentary elections are detailed in Part H of the Commission’s Parliamentary guidance manual at http://www.electoralcommission.org.uk/about-us/guideukparl.cfm. Some of the relevant documents have changed name etc following recent changes but the time period of 12 months remains the same. A court can order documents to be retained longer in the event of a challenge or investigation.

In India, most election related documents are to be preserved for 6 months. Thereafter, these are destroyed as per certain procedures, unless there are any legal cases in any court of law - in which case, the records are preserved till the court case is resolved.

It is a good practice for all EMBs to preserve sensitive election materials after each election, not only for the eventuality of disputes being lodged, but also for reference, archiving, research and institutional memory purposes. However, electoral laws in many cases require that such material is kept for a given period of time, usually a few months, mainly connected with the requirements of electoral dispute resolution procedures.

Many electoral disputes become the subject of an ordinary litigation process before the judiciary, once the first instance and purely electoral resolution of such disputes is finished. In some other cases, such disputes may be dealt with by other institutions, such as the legislature or a constitutional council. This means that the relevant litigation procedures and their length in time and deadlines would obviously exceed the limits of electoral legislation, as such periods are established in other legal instruments. Therefore, the best practice starting point should be to ensure that electoral provisions provide for an EMB obligation to preserve sensitive material for as long as it may be necessary while there is a disputed case before the courts (or other bodies) of the country following each election. As long as a judicial case that originates from an electoral dispute has not been resolved through a final and binding judicial ruling that is not subject to any other possible appeal procedure, the EMB should not destroy sensitive electoral material.

Examples of electoral laws that include provisions to preserve electoral material for a given period of time include: South Africa (6 months after final results are declared); Mexico (until the electoral process has been concluded); Philippine (3 months, unless a dispute is pending or the EMB orders that materials are kept for longer period for other purposes); Yemen (Until all electoral disputes have been solved). Therefore, what is really important in this regard is to consider the procedures in the law for electoral disputes resolution, their periods and deadlines, to determine the period of time during which electoral materials must be kept. Generally speaking, a period between 3 and 6 months should be safe, but longer periods of up to 12 months may provide additional guarantees and serve other reference purposes.

Australian federal election law (Commonwealth Electoral Act) states in S393A that:

Subject to Part XXII, the Electoral Commissioner may direct that electoral documents be destroyed if:

                     (a)  not less than 6 months have elapsed since the declaration of the poll in the election in which the documents were used; and

                     (b)  the documents are no longer required by the Electoral Commission for the performance of its functions.

Part XXII of the Act relates to election disputes before a Court of Disputed Returns.

Regards

Alan

THANKS TO ALL WHO HAVE CONTRIBUTED!

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opinions expressed by members of the ACE Practitioners' Network do not
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