The appeals process and the adjudication of complaints are essential parts of a free and fair election. Those who think they have not been treated equally or those with a valid complaint must have the opportunity and the mechanism to seek redress.
The appeals process can catch and correct fraudulent action as well as genuine mistakes. A fair and equitable complaint and appeal process can also vindicate accused election managers and expose those who make fraudulent or unjustified accusations.
Some candidates and parties may refuse to accept an electoral defeat and charge fraud or manipulation without any grounds. Some candidates may have grounds and the evidence to prove their charges. The investigation into the machine count problems in the 1998 Hawaiian elections (see Counting), showed that making a timely and public investigation increased transparency as well as public confidence in the integrity of the process. In this case, they felt it was important to dispel unfounded charges:
Easy solutions offered for real or imagined problems in elections may result in weakening the process. The process is too complex to warrant tinkering by those who are unskilled in administering the process... This review will be acceptable to reasonable people. It is unlikely that all charges, opinions or concerns will be totally answered to the satisfaction of those who base their concerns on fear and suspicion without concrete factual proof of allegations. Democracy is a fragile process, too important to all of us to allow unfounded or unproven allegations.223
Election integrity requires a willingness by the election management body and the justice system, to effectively address complaints. It also requires a willingness by the complainant to use the official complaint mechanism and to abide by its decision. The complaint and appeal process must be taken seriously with effective systems devised so that complaints can be evaluated and addressed in an efficient and timely manner (see Management of Challenges and Complaints.)
For example, in the 1998 elections in Cambodia, the 'NEC (National Elections Committee) failed to grasp the importance of handling these complaints in a transparent, forthcoming and sensitive fashion. The CPP (Cambodian People's Party) pressed the NEC to wrap up the complaints process hastily. This in turn, only increased the opposition parties' suspicion of a cover-up. As a result the NEC's reputation was irreparably damaged.'224 (For more on the problems of the complaint process in Cambodia, see the case study Dispute Resolution Mechanisms)
The institutions that handle complaints and appeals will differ according to the electoral and judicial system of the country. Some systems use the electoral management or policy body to handle electoral complaints and appeals. Other systems use a specialized court, such as an electoral court. Some systems, such as Denmark, use the legislature. According to the Danish constitution, the Folketinget determines the validity of the election of its members and is the sole judge in matters of eligibility.
Decisions on matters related to the approval of elections rest entirely with the parliament itself. This is in accordance with traditional parliamentary theory and theories of representation. Since 1920, no election has been declared invalid, which would result in a second ballot taking place.225
On the other hand, in South Africa, complaints are first made at the Elections Commission, and then appeals are made to the Electoral Court. However, 'an election may not be set aside because of a mistake in the conduct of that election or a failure to comply with this Act, unless the mistake or failure materially affected the result of the election.' 226
This highlights the importance of adequately documenting a complaint so that the review body can determine if it is a valid complaint and the extent of the problem. For more on challenges and the complaint process, see: Challenges to Voters and Challenges to Validity of Ballots.
Recounts
Recounts are usually held in cases where a candidate or party challenges the vote count because they have reason to believe that the count was inaccurate. This can be because ballots were improperly counted or rejected, or because the poll workers improperly carried out the official addition. In some systems there is an automatic recount in a close election.
In the case of Canada, an automatic recount is done if the two leading candidates are separated by less than one-thousandth of the total votes cast in the electoral district. The judicial recount is requested by the returning officer who also advises the candidates in writing. Citizens may also ask a judge to carry out a judicial recount by submitting an affidavit within 4 days of the official tally.227
To ensure the integrity of the recount, it is usually done within a short period of time after receipt of the complaint. This is to ensure ballots are not destroyed or tampered with before the recount. Monitors and observers usually watch the recount to ensure it is done accurately.
Administrative Reviews
Internal reviews can be done by the election management or policy bodies and are usually the first step after receiving a complaint. These reviews are part of the internal checks and balances of most election administrations. The reviews can deal with persons who had problems registering either as voters or as candidates, party registration issues or challenges to registration, voting or the count.
To ensure integrity in the review process, the decision of the electoral management body is usually subject to an appeal. This enables the person who filed the complaint to seek a review of the decision with a higher-level institution, such as a constitutional court or other judicial entity. As described below, the appeal process serves as a check on the decisions made by the initial review board and can deter arbitrary or biased decision-making.
In most systems, complaints regarding criminal activities are usually handled separately through the criminal justice system.
Appeal
Appeals are part of a free and fair electoral process. They can be one of the checks and balance on the decisions made by a lower-level court or administrative review of complaints. Each system handles their appeals differently, according to their legal and institutional frameworks, but it is important to have a user-friendly system that can review lower decisions in a systematic, neutral and timely manner.
In Ireland, for example,
the result of a presidential election may be questioned by way of petition to the High Court, presented by the Director of Public Prosecutions, a candidate or the agent of a candidate at the election. A petition may be presented only if the High Court, by order, grants leave to a person to do so. Application for leave to present a petition must be made within seven days of the declaration of the result of the election. The High Court, at the trial of an election petition, must determine the correct result of the election and for this purpose, may order the votes to be recounted or the poll to be taken again in any constituency, or it may declare the election void, in which case, a fresh election is held. The decision of the High Court is final, subject only to appeal on a question of law to the supreme court.228
On the other hand, in India, once the actual process of elections has started, the judiciary does not intervene in the conduct of the polls. Once voting is completed and the result declared, the Election Commission cannot review any results on its own. This can only be done as a result of an election petition which can be filed before a court.229
