Adjudicating Election Disputes: Seven Global Standards

Chad Vickery and Erica Shein

International Foundation for Electoral Systems

Posted on November 6, 2012 | US

As the World Justice Project’s Rule of Law Index® illustrates, a country’s adherence to international standards for the rule of law depends on both written laws and actual compliance. Governments that respect and enforce the rule of law and actively work to ensure equal opportunity for all citizens will be more successful in protecting human rights and, importantly, will be perceived as being more fair and legitimate. This notion is enshrined in international public law, such as the International Covenant on Civil and Political Rights (ICCPR), which states that every citizen shall have the right and opportunity to take part in the conduct of public affairs by voting in secret in genuine, periodic elections. This requires a clear electoral legal framework that respects the rule of law. Further, an effective electoral complaints adjudication system must be in place to lend legitimacy and credibility to an election, and also to function as a peaceful alternative to post-election violence.

In an effort to assess and support the resolution of election complaints and disputes, IFES has identified seven global standards for effective electoral complaints adjudication:

  1. A transparent right of redress for election irregularities
  2. A clearly defined regimen of election standards and procedures
  3. An impartial and informed arbiter
  4. A system that judicially expedites decisions
  5. Established burdens of proof and standards of evidence
  6. Availability of meaningful and effective remedies
  7. Effective education of stakeholders
Considering current events and recent elections in Mexico, the sixth standard on remedies is worth highlighting. A functional complaint mechanism must provide for effective, timely and enforceable remedies. International legal conventions agree that, once a country has designated adequate rights and designed appropriate procedures, the process of generating results is an imperative component of the protections of fundamental rights. 

Some countries, such as Mexico, focus mainly on addressing administrative and campaign finance problems, while individual criminal penalties and procedures are underutilized (and frequently overlooked by election observers). This approach, prevalent in developing and advanced democracies, focuses on the administration and oversight of elections. In the case of Mexico, this function is conducted professionally and effectively. However, criminal legal frameworks are weak, prosecutors are under-resourced and political actors have little incentive or will to push for reforms. As a result, individuals can criminally influence the political process with impunity.

The Universal Declaration of Human Rights notes the importance of the “right to an effective remedy by the competent national tribunals for acts violating the fundamental rights [such as voting] granted him by the constitution or by law.” This language is mirrored by most major international legal documents.   We read the right to an effective remedy, within the electoral context, to include both administrative and criminal proceedings and states must address both to have in place meaningful, effective remedies.

Courts might also find it difficult to make a clear distinction between purely political allegations and legitimate complaints. Some candidates may refuse to accept defeat, and make frivolous and unsubstantiated charges, whereas others may have valid grounds to justify a complaint. Resolving these questions fairly and with finality may be the difference between a legitimate, stable transition of power and descent into violence. While there are clearly difficulties in determining whether a system provides adequate remedies in response to electoral irregularities, an election complaint adjudication entity that establishes guarantees for a timely decision, a legal justification, a final decision that is no longer subject to appeal and effective remedies for both administrative irregularities and criminal behavior, will go a long way to meeting the subjective standard of “fairness.”

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Chad Vickery and Erica Shein

International Foundation for Electoral Systems

Chad Vickery has 17 years of legal and international election administration experience with an emphasis on strengthening democracy and governance in transitioning societies. He has extensive experience in designing and managing election complaint adjudication programs; comparative legal analysis, working on elections and rule of law programs in Asia, Eurasia and the Middle East. Vickery’s programmatic experience includes leading projects to ensure development of impartial legal frameworks for elections, increasing professionalism of election management bodies, improving voter registration lists, establishing effective election dispute programs and increasing political participation of women and historically disenfranchised groups. He holds a master’s degree in international relations from Georgetown University, a juris doctorate from the Catholic University of America with a concentration in comparative and international law, and a bachelor’s degree in political science from the University of Washington. He is a member of the Washington State Bar.

Erica Shein has contributed to research projects and the development of programs relating to legal frameworks and best practices for electoral complaints adjudication; electoral fraud and malpractice; electoral violence; and the inclusion of women and persons with disabilities in political processes. Shein has previously designed and provided support for IFES projects in Indonesia, Cambodia and Timor-Leste. She holds a master’s degree in international relations and international economics from the Johns Hopkins School of Advanced International Studies and a bachelor’s degree in politics from Princeton University.

The views expressed on the blog are solely those of the blog post author, and do not necessarily reflect the views of the World Justice Project.