Mechanisms for Challenging Results
A mechanism for challenging results is desirable at every stage of the vote counting process. This helps to ensure that the election process is transparent, that election authorities are accountable, and that the election outcome is acceptable to all parties.
Effective mechanisms for challenging results add to the credibility of an election outcome. If a party to an election is not satisfied that an election has been properly conducted, the ability to effectively challenge the election result will ensure that any genuine errors are corrected, and that any fraudulent activities are identified and dealt with.
Conversely, if concerns are baseless, the process of challenging an election outcome should serve to put any concerns to rest, and enhance the credibility of the outcome.
If an election cannot be challenged to the satisfaction of all parties, then it is possible that the election outcome will not be accepted, leading to civil or political strife.
It is also important that election challenges do not unreasonably delay the election process. Delays in the formation of parliaments and governments can lead to civil or political unrest in extreme cases.
Election results can be challenged in several ways, and at several points in the process. Opportunities for challenging results will depend on whether paper ballots, mechanical, or computerized ballots are used.
Challenging Results During the Vote Count
At the first stage of the counting process for paper ballots, when ballot boxes are opened, and ballot papers counted for the first time, observers are often given the right to challenge whether a ballot paper is genuine, whether a ballot paper is formal or informal, or whether it has been correctly sorted to a candidate or party. The polling official in charge of the counting may be given the power to rule on disputed ballot papers, or ballot papers can be set aside so that a more senior polling official can rule on them at a later time.
Similarly, if ballot papers are recounted at a regional or central counting centre, observers may again challenge decisions taken during the count. At this stage, it is usually possible to reverse a decision on a disputed ballot paper that was made at an earlier count.
Where mechanical or computerized voting methods are used, election observers should have the right to inspect audit trails and any source documents used, and have the opportunity to challenge any alleged irregularities.
The methods of disputing the count at this stage will vary from place to place. In many cases challenges may be made verbally. In some circumstances, it may be desirable to have a more formal, written process.
Where ballot papers are set aside for the decision of a more senior officer at a later time, these ballot papers should be bundled separately, and clearly labelled, so that they can be identified later. Also, these bundles of disputed ballot papers may be kept separate, so that a court or tribunal can rule on them if necessary.
The categories of individuals able to challenge a counting decision will vary. Representatives of candidates and/or parties are often given the right to challenge the counting process. In some cases, local or international observers may also be given this right.
Recounts by Electoral Bodies
Where paper ballots are used it is usual to allow candidates and/or political parties the right to apply for a recount, once counting is completed and a result has been obtained. This means recounting some or all of the ballot papers to satisfy all parties that the correct outcome has been achieved. Depending on the technology used, it may also be feasible to recount an electronic ballot by, for example, reprocessing the original input documents.
Written Requests for Recounts
As recounts can be time-consuming and expensive, the responsible polling official may be given the discretion to decide whether or not to grant a recount. Generally, recounts are only conducted if an election result is close, and there is some doubt as to the accuracy of the count. In some jurisdictions, recounts are automatic if the result is within a certain margin. In other cases, recounts may be mandatory whenever a result is challenged, regardless of the margin.
If the initial result is a tie, it is wise, as a general rule, to automatically conduct a recount to determine whether any mistakes were made that, if corrected, could break the tie. Otherwise, the definition of a 'close' election result will depend on local circumstances, and the estimated margin of error in the first count. The most important consideration is to ensure that all parties are satisfied with the outcome. If failure to conduct a recount will lead to one or more parties not accepting the election result, a recount should be conducted.
A recount can either be a full recount or a partial recount. Depending on the circumstances, it may be possible to select some categories to recount, rather than conduct a complete recount. For example, a representative random sample might be chosen to give an indication of the accuracy of the initial count.
A recount may be undertaken simply as a check that all ballot papers have been correctly sorted. Or a recount may involve retracing one or more steps and conducting the recount as if it were the original count.
Thorough records of any recounts conducted should be kept. These will be necessary to satisfy all parties that proper procedure has been followed, and may be needed if the election result is challenged at a later stage.
There should be a time limit on applying for a recount. In most cases recounts will only be permitted within a short time after the completion of counting. For example, there may be a twenty-four hour or forty-eight hour limit. In some cases, recounts may be requested only before the official declaration of the election result. After that time, recourse may only be permitted to a court or tribunal.
If the responsible officer decides not to do a recount, a candidate or party may have the right to appeal that decision to a higher authority. That authority, such as a more senior electoral official, may in turn decide whether or not to do a recount.
Communicating Election Results
Before an election result can be challenged, the individuals entitled to make a challenge must be equipped with the necessary information. At each stage of the counting process, it is important to communicate the progressive election results to national/international electoral observers, such as party and candidate representatives. It may also be appropriate to communicate progressive results to the media and the general public. When the election count is concluded, and the election result is officially declared, it is customary to publish an official set of election results.
Because challenges may lead to changes in final official results, the election management body should stress that the first published results are preliminary and may change at a later time.
This process of communicating the progressive and final election results facilitates the transparency of the electoral process and allows representatives of political parties, for example, the opportunity to challenge the results, if they wish, on the basis of all available information.
Challenging Election Results before a Court or Tribunal
After any administrative recounts are resolved and the electoral authority has officially declared the election result, there may be further opportunity to challenge the election result by appeal to a court or a special election appeal tribunal.
A challenge to a court or tribunal is generally made in a formal legal petition. Challenges may be made by candidates, parties, persons eligible to vote in the election, or by the electoral administration. Those mounting a challenge usually have to argue a case for challenging an election result.
There will generally be a time limit on challenging election results before a court or tribunal. This limit is usually longer than that applying to an administrative recount, as the legal nature of court or tribunal proceedings require greater preparation. In Australia, for example, there is a forty-day limit on challenging an election result before a court. In addition, the court or tribunal may be required to hand down its decision within a specified time.
At this stage, any aspect of the election may be questioned, including:
- the accuracy of the voters' list,
- whether voters were intimidated, bribed, or prevented from voting,
- whether candidates or parties acted improperly,
- whether candidates were eligible to be elected,
- whether votes were fraudulently cast, or
- whether there were any errors or irregularities in the vote counting process.
Courts or tribunals considering disputed elections may have the power to examine ballot papers and other election documents, or order recounts of ballot papers. They are usually given the power to decide to confirm the original election result, or to overturn the election result and declare a different result. They may also have the power to order that another election must be held.
Courts and tribunals may be bound by precedents set by previous election challenge rulings. To maintain the integrity of the electoral process, it is important to consistently interpret electoral laws. In particular, each electoral system will have a set of rules defining acceptable marks that may be used on ballot papers and other crucial parts of the electoral process.
In some cases it may be possible to appeal against the decision of a court or tribunal to a higher authority. In other cases, statutes specify that there cannot be appeals against the decision of an election court or tribunal. This helps to prevent election results and the formulation of parliaments and governments being unduly delayed by legal processes.
How Long should Election Materials be Kept?
As a minimum, relevant electoral materials should be securely stored until the last opportunity for challenging an election result has passed. In some cases, this may mean storing electoral materials for the entire life of a parliament. In other cases, electoral materials may be destroyed, once the time for challenging a result before a court or tribunal has passed, or if a challenge has been lodged, after the challenge has been finally dealt with.
Only materials relevant to an election outcome need be kept. This will usually include ballot papers, voters' lists, any declarations completed by voters, election results, and any records related to disputed results. If in doubt, it is better to store materials rather than destroy them.
Any stored materials must be kept secure from tampering. Ballot papers that may be recounted at a later time cannot be relied upon if the responsible body cannot be sure that they have not been tampered with.
Once the decision to destroy electoral materials is taken, the responsible electoral management body should ensure that the materials are destroyed appropriately. Any electoral materials that might identify how an individual voted should be destroyed in such a way as to keep that individual's vote secret. If possible, paper materials should be recycled.
Election Challenges and the Political Process
Election challenges can be quite disruptive to the electoral and political processes. They can delay the finalization of election results, which in turn can delay the first meeting of the new parliament and the formation of a government. This situation can destabilize a sensitive political environment, and lead to civil unrest. For these reasons, it is important that election challenges are dealt with quickly, efficiently, and with maximum transparency and accountability.
The election process is aimed at electing representatives to parliaments that reflect the wishes of the people who voted for them. The processes for challenging election results should be aimed at ensuring that the wishes of the people are accurately reflected in the outcome.
Please refer to Vote Counting by Electoral Bodies and Challenges to Validity of Ballots for other details concerning challenging results.
