Treatment of Complaints
Effective and transparent mechanisms for dealing with complaints about and challenges to voting operations promote the accountability of the electoral management body and can assist in enhancing the acceptability of election outcomes by political participants and the public in general.
It is important for maintaining standards of accountability and transparency that all complaints about and challenges to operations of voting stations are investigated, not just those sufficiently serious to raise doubts about the validity of election outcomes. Even apparently vexatious complaints, if not openly and publicly answered, can be manipulated to raise doubts about voting operations integrity. Effective and transparent complaint resolution and challenge mechanisms can identify and combat not only any fraudulent activities or wrongdoing, but can ensure that any errors made by voting station officials in the course of their duties can be identified and corrected.
For legal frameworks for dispute resolution, see Conflict and Dispute Resolution, and for further discussion of dispute management frameworks, see Complaint Procedure.
Types of Complaints
Complaints on the operation of voting stations would generally fall into the following broad categories:
- challenges to the rights of specific voters to cast a vote, and complaints by intending voters that they have been omitted from voters lists or otherwise denied a vote (see Challenges to Voters and Challenges to Voting Operations Management);
- challenges to validity of ballot papers (see Challenges to Validity of Ballots)--mostly at the vote counting stage (see Checking Validity of the Ballot, Challenging Results, Checking Validity of the Ballot, and Challenging Results);
- complaints about or challenges to the actions of parties, candidates, and their representatives (see Challenges to Party/Candidate Representatives' Actions);
- complaints about or challenges to the administration of voting stations, either regarding the materials available and logistics issues, or the decisions/actions of voting station officials, election administrators, or security forces (see Challenges to Voting Operations Management).
Correct Implementation of Procedures
It is important that it is emphatically reinforced, both during training and whilst on duty, to all election administration officials and all officials working in voting stations and in counting ballots that:
- All actions they take may be subject to challenge or may need to be justified in the course of investigating election-related complaints or legal actions.
- It is vital that all officials implement the actions required by the procedures, manuals, and checklists provided by the electoral management body.
- It is also necessary that any significant occurrences or decisions taken that may affect the election outcomes (such as disturbances, unavailability of necessary materials, voters turned away or denied votes) are recorded at the time in writing.
- Records of voting and the count are official records that may be required by judicial authorities in relation to challenges to election outcomes or other legal action regarding voter fraud or other alleged election irregularities.
- It is essential that all documentation of voting operations is maintained in the manner prescribed by the electoral management body.
Principles of Complaint Resolution
Transparency and public confidence in the election process are considerably aided if:
- voting station managers have the powers, ability, and training to enable resolution of minor complaints and disputes at the voting station level;
- there is no undue limitation on the classes of persons who may make officially recognised and formally investigated complaints regarding voting operations, including voters, political participants, independent observers, and officials of the electoral management body itself;
- there is no undue limitation on voting issues about which formal complaints and challenges may be made;
- complainants are protected from any intimidation or harm that may be perceived as resulting from their complaints or challenges;
- procedures for lodging complaints are simple, equitable, affordable to complainants, and publicised;
- complaints and challenges are handled in a courteous, open, and professional manner;
- complaints and challenges are handled at as local a level as possible;
- resolution of complaints and challenges is swift (time frames for resolution would preferably be defined in the election framework), and decisions and their basis are openly available to the public.
These principles hold as true for minor, local complaints about voting station operations as they do for later challenges to election outcomes.
For further discussion of the administration of dispute resolution mechanisms, see Dispute Resolution.
Systems for Handling Complaints and Challenges
Given the usually tight time frames during election periods, complaint and challenge handling systems for voting activity work better in a simple, quick-response system, following a single hierarchical line. Without this, resolvable minor complaints may grow into major challenges to election outcomes. Multiple avenues of initial complaint or appeal, to voting operations administration and judicial bodies, may not only confuse but delay resolution of complaints or challenges, as aggrieved parties 'shop' for a favourable forum of decision. In general, administrative review mechanisms should be used before recourse to judicial intervention is available; though in systems where there is little confidence in the professionalism or independence of electoral management, handling all complaints through a judicial system may be the only reasonable option.
A practicable complaint resolution and review chain would see complaints and challenges handled in the following ways:
- On the operations of a single voting station, wherever possible, by the voting station manager, in consultation with the electoral district management, where necessary. Complaints of this nature could be related to issues such as the behaviour of voting station officials or party/candidate representatives or observers in the voting station, lack of necessary supplies, or incorrect opening and closing times.
- On general issues surrounding voting station operations, to the appropriate electoral management body administrative level--local, regional, or national. Complaints of this nature could be related to such issues as the overall accuracy of voters lists or consistent patterns of procedural implementation across voting stations that appear not to be in accord with the law.
- Where a satisfactory outcome to the complaint is not achieved, immediate review is available at the next level in the administrative hierarchy, either within electoral management body administrations, or specially-appointed administrative tribunals. This could include review by electoral district management of complaint decisions made by voting station managers; by regional electoral authorities of electoral district managers' decisions; by national electoral authorities of regional decisions.
- Judicial review, through normal courts or specially appointed tribunals, of decisions endorsed at the national electoral management body authority level. To ensure that election outcomes are not unduly delayed by successions of appeals, electoral legislation may sensibly provide for a single, non-appellant judicial authority to hear such reviews.
Challenges to election results, based on perceived voting operations deficiencies, would be better determined by judicial authorities. Where internal investigations by the electoral management body show that these deficiencies are significant enough to have had a possible affect on an election's outcome, it is prudent for the electoral management body itself to challenge the election's result. In publicly recognising these deficiencies it can help the future promotion of its image as a professional, impartial body.
For an example of procedures for handling complaints and challenges in relation to voting processes, see Complaints Process and Form - OSCE (Bosnia).
Voting Day Complaints
On and around voting day, there will be intense pressure on complaint resolution mechanisms. To prepare for this, voting operations administrators at local and other levels must ensure that they have:
- access to legal and specialist technical, conflict resolution, and operational advice;
- consulted with judicial and administrative review bodies to ensure that their officers will be available, and facilities are in place, to allow swift complaint resolution.
Documentation of Complaints and Challenges
It is highly preferable that all complaints and challenges concerning voting operations be accurately documented by the official to whom the complaint is made. Without such documentation, defences against any later challenge will be based on what may be imperfect recollections of occurrences in a pressured atmosphere. At the voting station level, standard forms for generic or specific complaint purposes could be provided to voting station managers, particularly where widespread challenges or complaints may be expected on issues such as eligibility of voters. Alternatively, documentation could be included in the voting station manager's report on voting.
Documentation should:
- state the time and location of the complaint/challenge;
- give the substance of the complaint;
- note the action taken by voting station officials or other election staff;
- be signed off by the voting station manager or other supervisory staff;
- be witnessed, wherever possible, by the complainant.
Complaint records should be treated as accountable documents to be securely maintained, as they may be later required in any challenges to election outcomes.
Court Challenges to Election Results
While some challenges and complaints regarding voting operations may be resolved satisfactorily by administrative means prior to the declaration of election results by the electoral management body, where aggrieved parties are not satisfied by such measures, they may be able to challenge an election's result before a court or a legally designated special election tribunal. It is important that such courts are not unduly limited in the directions and determinations they may make. Possible outcomes would preferably include:
- confirming the election result;
- determining a different result;
- directing that the election be voided and a new election held;
- making orders binding on election participants, including administrators, candidates, and parties.
In relation to ballot paper counts, they should also include powers to direct that certain ballot papers formerly included in counts be excluded, or certain ballot papers formerly excluded be included, and a new result calculated by the electoral management body.
Issues
Issues that could come before the courts fall into two distinct categories:
- those that allege breaches of criminal or electoral law by individuals or groups, but do not challenge election outcomes;
- those that challenge the outcome of the election through alleged breaches of electoral law.
With regard to challenges to the election results, electoral legislation needs to be specific as to:
- judicial authorities with jurisdiction over challenges and any appeal rights;
- grounds available for challenge;
- procedures for challenge;
- required actions by complainants in terms of nature of evidence and necessity for affidavits;
- who may initiate court challenges--whether this may be done by individual complainants, the electoral management body, or whether it requires judicial order;
- the role of the electoral management body and other state agencies in investigations, preparation, and presentation of evidence.
The legal framework should also give clearly stated time deadlines for lodging and resolving challenges to election outcomes. Unless determined quickly, challenges to election results can disrupt systems of governance since they can leave in doubt the validity of any decisions taken by the challenged representative body. However, the time period for lodging such challenges should be sufficient to allow the complainant to gather evidence to support the challenge.
Elements of legislative frameworks for court action on such challenges is at Conflict and Dispute Resolution. For such challenges, it would be usual for legislation to require the complainant to prepare and present formal legal documentation of the challenge (or a judicial order to be prepared) within a specified time period after the results of the election have been announced, and argue the case before the court or tribunal. It is preferable that the electoral management body also has the power to make application to the relevant judicial authorities that an election be set aside. The electoral management body is likely to have access to a wider range of data on the election than individual complainants.
It is preferable that judicial bodies have the power to examine all relevant election material, including ballots, ballot boxes and seals, voters lists and supporting documents, election forms, voting station reports and records. In the interests of justice and transparency, it is also preferable that complainants have access, under security conditions if necessary, to original or certified copies of such material held by the electoral management body.
Storage of Material
All information that may be relevant to challenges to election results must be kept securely until any time limit for such challenges has elapsed. Care must be taken that during counts or post-voting day administrative actions, no marks are allowed to be placed on ballots or voters lists, and other material is not amended or defaced in a manner which obliterates the original record. It is vital that this material is kept under secure conditions sufficient for the electoral management body to be certain that it cannot be tampered with or destroyed.
In determining which material may be relevant to challenges, and be maintained under security, it is better to err on the side of safety. Certainly all ballots, ballot boxes and seals/locks, voters lists and supporting documents, ballot paper reconciliations and count records, voting station and incident reports would fall into this category. However, it is preferable to maintain secure storage of all possibly relevant material than be embarrassed by the inability to produce material required for a court challenge or later recount.
A formal materials destruction schedule should be developed by the electoral management body that ensures that election material is not destroyed before the lapse of any period during which it may be required for legal or further administrative action. In some systems, where recounts are used to replace resigned or deceased representatives, ballot material may need to be kept under secure conditions for the term of the elected representative body. (For detailed discussion of post-election storage of material, see Storage after Voting Day.)
