The decision to prosecute is generally made by the prosecution agency or office. This is usually a separate office or institution from the investigatory agency and the separation serves as part of the checks and balances to protect citizens against arbitrary police action.
Integrity in the enforcement of election integrity requires that the decision to prosecute is done objectively based on a thorough review of the case, the weight of evidence and the jurisdiction of the prosecution.
Objective review
In deciding what cases to prosecute, prosecutors usually undertake a thorough and objective review of the case. This review can take the following factors into consideration:
- what laws were broken;
- were the allegations substantiated by the facts and by credible, reliable witnesses who are willing and able to testify in court;
- did the evidence collected link the suspect to the crime, and is it admissible in court;
- was the intent criminal in nature; and
- is there a reasonable prospect of conviction.
However, in some systems, prosecutors are elected officials. This can mean that prosecutors are very aware of public opinion and the politics of particular cases- especially election fraud cases that might involve high profile individuals. Although the public interest can affect a prosecutor's subjective judgement, it also provides them with a different accountability mechanism than the police or investigators, who may be civil servants. If the voters decide they do not like a prosecutor's style or record, they can vote him/her out of office in the next election.
Despite the need to satisfy public opinion, prosecutors should strive to be impartial and enforce the laws fairly and evenly. Their review of the complaint file and findings is supposed to result in an objective determination of whether a prosecution is warranted and if it is in the best interests of the public. Prosecution that is not fair or warranted can be remedied through the Monitoring of Enforcement or through the appeal process (see Prosecution and Judicial Proceedings).
Public interest factors
As discussed in Decision to Investigate, some systems use a determination of what is 'in the best interest of the public' in their determination of whether a case will be prosecuted. This can be a subjective decision and is affected by the Social and Political Context of each system.
For example, for Elections Canada a decision to prosecute includes:
the seriousness or triviality of the alleged offence, the significant mitigating or aggravating circumstances, the suspect's alleged degree of responsibility for the offence, and the effective alternatives to prosecution, the prosecution's likely effect on public order or public confidence in the integrity of the Acts, the need for general and specific deterrence, the limits on available resources, the time limit to prosecute has not expired, and where a section of the Acts is found unconstitutional in a province, the appropriateness to apply the decision uniformly across the country.359
In the case of the U.S.:
prosecutors should keep in mind that our society tolerates behaviour in election campaigns that it does not tolerate in commercial, personal or government relations. Thus, as a general rule, the federal crime of 'voter fraud' embraces only organized efforts to corrupt the election process itself: i.e. the registration of voters, the casting of ballots and the tabulation and certification of election results.. This definition excludes all activities that occur in connection with the political campaigning process, unless those activities are themselves illegal under some other specific law or prosecutive theory such as stealing opponents campaign property, breaking into opponents headquarters.. or illegal acts under campaign finance laws... most things that candidates do or say about each other on campaign trail are not appropriately remedied through criminal prosecution.360
In these cases, prosecutors consider whether administrative action or other measure might be a better alternative to prosecution.
National or local prosecution
In legal systems the jurisdiction of a case is determined primarily by which laws have been broken. In a federal system, where there are national, state and local laws, an election-related offense could involved a violation of both the national and state laws. Integrity issues can arise over which court handles the case. Will a politically sensitive case be treated more objectively at the national or local level? Will local prosecutors want to get involved in a politically sensitive case that has the potential for severe repercussions? According to Craig Donsanto,
Voter fraud matters are always politically sensitive and very high profile endeavours at the local level. Local prosecutors (who are usually themselves elected) often shy away from prosecuting them for that reason.361
The U.S. Federal Elections Commission agrees:
The defendants in voter fraud cases are apt to be politicians- or agents of politicians- and it is often impossible for either the government or the defendant to obtain a fair trail in a case that is about politics and is tried to a locally drawn jury. The federal court system provides for juries to be drawn from broader geographic base, thus often avoiding this problem.362
These issues need to be taken into consideration when determining which agency will prosecute the case, and which agency is best placed to ensure the prosecution is done with integrity.
