When a complaint is received, or an alleged crime reported, a decision must be made whether to investigate. Whether a valid complaint is investigated is an integrity issue, as is investigating complaints that might be unsubstantiated and are pursued for political reasons.
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. These reviews look at the credibility of the complaint, if there is sufficient and reasonable grounds to suspect that a law has been broken and if it is probable that an investigation will determine the culprit.
Most systems develop standard operating procedures and criteria to determine whether a complaint is valid and should be investigated. In Canada, for instance, only cases that meet a 'Threshold Test and Standard' are investigated. Canadian policy determines where that threshold is placed. The current policy is 'whether there exist reasonable grounds to believe that the gravity or seriousness of the alleged offence would justify committing investigative resources' along with consideration of 'public interest factors.' 338
Integrity issues can arise if the review procedures are discriminatory or allow for too much individual discretion. In these cases, the review could be used to either dismiss a valid complaint or to go after someone for personal or political reasons.
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. Some of the factors which are used to determine whether a complaint is valid, and which agency would have jurisdiction over the investigation, include:
- Substance. Does the substance of the complaint suggests a crime has been committed, and that it was serious enough to warrant an investigation?
- Violation. Has a law been broken and, if so, which one? Is it a civil or criminal case? Has a national law been broken which would warrant central or federal investigation, or is it a regional or local law which would require regional or local handling?
- Scope. Is the violation an isolated act of individual wrongdoing or is it part of an organized process to corrupt the electoral process? Depending on the system, this could affect its jurisdiction. Widespread systemic problems usually warrant national handling.339
- Evidence. Is there enough factual information in the complaint to provide leads for investigators to pursue? Is it reasonable to believe that these facts could be verified through investigation? Are the witnesses credible and willing to cooperate and provide information?
In order to support a criminal investigation, a complaint must be reliable as well as sufficiently fact-specific to provide logical leads by which a ... preliminary investigation can confirm or disprove that a ... crime may have occurred... As most of these offences deal with frauds that are aimed at defects in individual registration or voting acts, the incoming facts in a complaint should normally provide leads to the detection of specific corrupted voting acts. If the facts contained in the complaint fail to meet these standards, the complainant is normally told that (s)he has not sufficient information to allow evaluation and is encouraged to obtain and provide the additional factual details needed for preliminary evaluation.340
Most systems have developed detailed procedures for the evaluation of a complaint, including a time line for responding back to the complainant. Following well-thought out procedures can help ensure that integrity standards are met.
In most systems, complaints are usually dismissed if:
- the allegations were anonymous and the matter appeared not serious enough to warrant further investigation;
- the allegations are too vague or frivolous, and further investigation appears unlikely to be able to collect any more specific information;
- no laws or regulations appear to have been broken;
- the allegations appear to be founded but an investigation is not likely to result in the identification of the suspect, or in enough evidence to use against a suspect;
- the evidence suggests that there was no criminal intent, or that the matter has already been corrected through other means; or
- the filing dates for the complaint has expired.
Mistakes are usually not prosecuted and are handled through the supervisory procedures of the election management body, by the oversight body, or through a civil proceeding. A mistake that made a significant impact on the outcome of a close election are usually challenged by the losing candidate through the Complaints and Appeals process.
Policy considerations
Policy plays a large role in determining which cases will be investigated and which will be dismissed. As a result, public Policy for enforcement should strive to be fair and nonpartisan.
For example, as discussed above, Canada has a 'Threshold Test and Standard' which determines which cases merit investigations. This standard is set by policy but has objective indicators to determine whether a complaint merits investigation. However, it also includes the subjective indicator of what is in the best interest of the public. These 'public interest' factors include:
- 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 any related need for a generic or specific deterrence devolving from the investigative process and court proceeding;
- the staleness of the alleged offence or likely length and expense of an investigation in relation to the seriousness of the alleged offence; and
- the availability and efficacy of any alternatives to investigation, such as administrative remedies and voluntary compliance measures by the alleged offender.341
Subjective indicators can allow for more discretion in the handling of complaints; allowing investigators to weigh the individual merits of each case. However, some systems, such as Mexico's, deliberately limit discretion as one of their checks and balance mechanisms.
Prioritizing cases
Policy also determines the priority of an investigation. Investigating allegations of voter fraud are labour and time intensive. Some investigative agencies do not have the human or financial resources to investigate every valid complaint. Integrity issues can arise if prioritization is not done on the basis of objective criteria, but is left to the discretion of the individual investigators or enforcement managers. This can be used to bury politically sensitive cases or to bring other less deserving cases to the forefront.
These types of integrity issues can be addressed through effective monitoring and oversight of the enforcement process as discussed in Monitoring of Enforcement.
