Combating Election Irregularities in the 21St Century

By Carl W. Dundas

This work aims to promote the concept of reducing the incidence of election irregularities and requiring less intervention by the court or similar disputes resolution mechanisms.

The essence of this new approach is to place much greater emphasis on drastically reducing errors through noncompliance with electoral laws and particularly rules, regulations, and directives, which result in election irregularities.

This approach may require greater clarity in drafting election rules and regulations as well as more intense monitoring and warning systems developed by EMBs to ensure a high degree of accuracy in the preparation and polling processes.

This concept proceeds on the basis that, in general, election stakeholders wish to see the genuine results of the democratic process without diversions to the court or similar assistance being brought into action.

• Language: English
• Publisher: AuthorHouse UK
• Release date: May 26, 2015
• ISBN: 9781504940375

Carl W. Dundas

Carl W. Dundas, LLB, LLM (Lon.), barrister-at-law (Gray’s Inn), is an election expert. Mr. Dundas has offered technical assistance in electoral matters in many countries, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nigeria, South Africa, Tanzania, and Zambia. He has been a part of the commonwealth support team to Commonwealth Observer Groups to Bangladesh, Guyana, Kenya, Malaysia, Malawi, Pakistan, Mozambique, South Africa, Tanzania, and Zambia. Mr. Dundas advised on election organization and management in Jamaica, Kenya, Liberia, Malawi, Mozambique, Nigeria, South Africa, and Sierra Leone. Mr. Dundas led commonwealth secretariat’s electoral technical assistance missions to Guyana, Kenya, Malawi, Mozambique, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania, and Zambia. He carried assignments in areas, such as designing electoral frameworks for a neutral and impartial electoral management body, drafting of instruments for transition from military regimes to multiparty democracy, and he organized capacity-building seminars and workshops. He coordinated a post-election audit exercise in Botswana (2004) and advised on the implementation of post-election review recommendations in Nigeria (2003–04). Mr. Dundas advised on constitutional reform relating to fundamental provisions, dealing with electoral legislative schemes in many countries, including Guyana, Lesotho, Malawi, South Africa, and Tanzania and advised on electoral legislation in Antigua and Barbuda, Cayman Islands, Jamaica, Kenya, Lesotho, Liberia, Malawi, Nigeria, and Sierra Leone. Mr. Dundas led the support team to the commonwealth observer missions to elections in Malaysia (1990), Zambia (1991), Kenya (1992), Guyana (1992 and ’97), Malawi (1994), Mozambique (1994), Tanzania (1995), Zanzibar (Tanzania), and Trinidad and Tobago (2000). He also served as the technical adviser to the commonwealth preelection observation mission to Namibia in 1989 and to the Commonwealth Observer Group to South Africa in 1994. Mr. Dundas was chairman of the Electoral Boundary Delimitation Commission of the Cayman Islands in 2003 and 2010. As an independent electoral consultant from 2001 to 2006, Mr. Dundas advised many election management bodies (EMBs) on reform and modernization, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Lesotho, Liberia, Nigeria, and Tanzania. In 2006, Mr. Dundas became chief of party of the International Foundation for Electoral Systems (IFES) Africa Union Support Program Union Support Program (funded by USAID) to advise the African Union on the establishment of a Democracy and Electoral Assistance Unit (DEAU). The DEAU was established in May 2008, and he remained as its adviser at the Africa Union in Addis Ababa until 2010.

Book preview

© 2015 Carl W. Dundas. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 05/22/2015

ISBN: 978-1-5049-4036-8 (sc)

ISBN: 978-1-5049-4037-5 (e)

Any people depicted in stock imagery provided by Thinkstock are models,

and such images are being used for illustrative purposes only.

Certain stock imagery © Thinkstock.

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Contents

Preface

Acronyms and Abbreviations

Note about the Author

Other Works by the Author

Introduction, historical context of election irregularities

Types of election irregularities

Recent Canadian and Australian experiences

Strategies to reduce election irregularities

Chapter 1

Reduction of Election Irregularities and the Legal Design

Legal design and combating irregularities

Electoral administration and reduction of irregularities

Equipping an EMB to combat irregularities

Kenyan procedure for appointing Commissioners

Namibian procedure for appointing Commissioners

Size of EMBs

Conduct of EMBs’ members

Removal of Chairperson or member

Recruitment of staffs

Delimitation of electoral districts

Voter/election education

Election campaigns and election irregularities

Campaign financing and irregularities

Principles of operation

Independence

Accountability

Transparency

Level playing field

Upholding the integrity of the electoral process

Recruitment of competent staffs

Acquiring and using new technologies

Functions and powers of EMBs

Voter registration

Political party formation and registration

Delimitation of constituencies

Voter and election education

Registration of election contestants

Secrecy of the ballot

Compliance with the legislative scheme

Breaches and punishment

Enforcement of punishment

Disputes’ resolution

Upshot of the Etobicoke Centre elections (Canada)

Chapter 2

EMBs’ Role in Combating Election Irregularities

Introduction

EMB, members, staffs and conduct of business

Management tools

Electoral management system

Graphic design facility

Election calendar

Keeping proper records

Status of EMBs

Resources of EMBs

Vetting election laws and regulations

Control, superintendence and direction of elections

Cost-effective measures

Relations with stakeholders

EMBs and political party campaign finance

EMBs and codes of conduct for political parties

EMBs’ relationship with CSOs

EMBs’ relations with independent observers

EMBs’ relationship with the media

EMBs’ relations with government

Chapter 3

Electoral Systems and Election Irregularities

Introduction

Manipulation of an electoral system

Fairness

Proportionality

Simplicity

Treatment of minorities and women

Accountability to constituents

Combating potential racial, ethnic or religious conflicts

Stable government

Political parties’ use of electoral systems to combat irregularities

Electoral systems, voter participation and election irregularities

Electoral systems, cost-effectiveness and election irregularities

Plurality system

Majority systems

Proportional systems

Mixed electoral systems

Chapter 4

Delimitation of Electoral Districts and Election Irregularities

Introduction

Nature and scope of delimitation

The legal design

Application of delimitation formula

Need for delimitation and avoidance of irregularities

Delimitation procedures and irregularities

Combating manipulation of the process

Role of courts in addressing delimitation irregularities

Outcomes – fairness

Chapter 5

Combating Irregularities in Voters’ Registration

The courts’ track record

Combating irregularities in eligibility to register

Nature of eligibility to vote

Principles underpinning combating voters’ registration irregularities

Fairness

Inclusiveness

Comprehensiveness

Accessibility

Awareness programmes and irregularities

Security

Accountability

Interaction with stakeholders

Irregularities in qualification for voter registration

Irregularities in identification of eligible persons

Registration staffs’ recruitment

Training of registration data-processing officers

Voter/election education programmes to combat irregularities

Avoidance of irregularities in acquisition of registration materials

Concept of checks and balances in registration

Avoidance of irregularities in registration data collection

Reducing irregularities in data quality

Reducing irregularities in processing voter registration data

Combating irregularities in the voters’ register

Maintenance of a register free of irregularities

Combating irregularities concerning voters’ cards

Accessibility of voters’ register

Irregularities that visit the registration process

Combating irregularities through continuous registration

Combating irregularities and use of civil registry

Combating irregularities through compulsory registration

Combating irregularities in a voluntary registration system

Chapter 6

Combating Irregularities in Registration of Election Contestants

Introduction

Entry points and election irregularities

Nationality issues and election irregularities

Gender issues and election irregularities

Disadvantaged individuals and election irregularities

Election irregularities and independent candidates

Combating irregularities in registering election contestants

Party primaries and election irregularities

Irregularities and the conduct of registration of contestants

Effect of contestants’ registration

Failed registration of contestants

Technical defects and election irregularities

Combating intimidation and violence

Disputes’ resolution

Chapter 7

Stakeholders and Election Irregularities

Introduction

Election irregularities and the arms of government

The judicial system and election irregularities

Election irregularities and alternative electoral disputes resolution mechanisms

Facilitation

Memorandum of understanding

Brokered agreement

Conciliation

Mediation

Negotiation

Arbitration

Commission of enquiry

Electoral audit

Combating irregularities and AEDR mechanisms

Combating election irregularities and security

Combating election irregularities and civil society organisations

Irregularities and Civic, election and voter education programmes

The media and combating election irregularities

Election irregularity and media codes of conduct

Media, voter and election education and irregularities

Combating irregularities through media, participation and transparency

Combating irregularities through media and level playing field

Election observers and election irregularities

Donor partners and election irregularities

Chapter 8

Irregularities and election Preparations

Introduction

Electoral offices’ premises

Staffs’ recruitment

Screening applicants

Irregularities and appointment of electoral staffs

Training of electoral officers and election irregularities

Deployment of electoral staffs to avoid irregularities

Irregularities and acquisition of election materials and equipment

Avoiding irregularities in use of ballot boxes and voting machines

Irregularities and acquisition of election supplies

Irregularities and polling station, location and identification

Irregularities in voters finding polling stations

Chapter 9

Reducing Irregularities in Election Campaigns

Introduction

Campaign period and election irregularities

Political parties as election contestants

Code of conduct for contestants

EMBs’ role in election campaign

Chapter 10

Combating irregularities in Preparation for and Conduct of Polling

Section 1: preparation

Correcting irregularities identified at the last general elections

Strengthening an EMB’s management tools

EMB’s role in mitigating irregularities during polling preparation

Irregularities and transparency throughout an electoral cycle

Irregularities, efficiency and accuracy in an electoral cycle

Irregularities and the integrity of the electoral process

Irregularities and recruitment, training and development of staffs

Irregularities and the management of logistics

Irregularities and security of polling stations and materials

Measures to prevent multiple voting

Section 2: conduct of polling

Introduction

Early voting

Absentee voting

Postal voting

Proxy voting

Military posted abroad

Diplomats posted abroad

Police and military deployed away from home in country

Refugees and asylum seekers

Internally displaced persons

Homeless persons

Nationals residing abroad

Online Internet-based voting

Opening of polls

Length of voting queues

Irregularities and election materials

Polling station staffs

Contestants’ agents

Observers

Irregularities and voting procedures

Polling station security

Environs of a polling station

Irregularities and management of a polling station

Quality of election services

Irregularities in handling ballots (Australian experience)

Procedure at close of poll

Counting at polling station

Counting at centres

Tallying and collation centres

Secrecy of the vote

Measures to protect secrecy

Limits of secrecy procedures

Procedures that potentially compromise secrecy

Isolated groups of voters

Irregularities and recounts

Lost ballots and recounts (Australian experience)

Announcement of results

Chapter 11

Mitigation and Prevention of Disputes

Introduction

Election irregularities and disputes

Miscellaneous types of election irregularities

Mechanisms to deal with complaints and disputes

Classification of electoral disputes

Electoral disputes that may arise at any time

Pre-polling disputes

Election Day disputes

Post-Election Day disputes

Election irregularities’ resolution

Tools to resolve electoral irregularities

Facilitation

Brokered agreement

Memorandum of understanding

Conciliation

Mediation

Negotiation

Arbitration

Commission of enquiry

Election audits

EMBs’ administrative procedures

Election tribunals

Election court

Constitutional court

High Court

Combination of methods

AEDR Mechanisms

Online dispute resolution

Scope of ODR

ODR in the European Union

Chapter 12

Irregularities and Election-Related Issues

Introduction

Conceptualisation of combating election irregularities

Limits of combating election irregularities

One size does fit

Referendum and initiative

Initiatives

Irregularities and parallel vote tabulation

Needs assessment missions

Doctrine of necessity and quest to combat irregularities

Indian National Awards for best electoral practices

Electoral justice; legitimate election and just election

Recall

Chapter 13

Irregularities in Acquiring and Using Election Technologies

Introduction

Transparency

Electronic voting

Integrity of process

Competence

Accuracy

Completeness

Building trust/confidence in electoral processes

Introducing technology in elections –feasibility studies

Training

Open source election technologies

The potential role of OST in elections

The role of OST in election technology

Strengths and weaknesses of OST in elections

The conclusions of the Guide on OST

Quest to combat election irregularities and OST

Chapter 14

Irregularities and Election Audits

Introduction

Categories of election audits

Election performance audits

Composition of performance audit team

Important elements of a performance audit

Performance audit report

An election audit of voting and counting

Epilogue

Preface

The quest to combat election irregularities in the age of digital democracies should be high on the list of goals of every EMB in the 21st century. It entails that EMBs should focus on avoiding or removing election irregularities in the electoral process. These practices are open to every EMB to attain, given reasonable electoral and political environment in a particular country. The path to achieving reduction in election irregularities in as many processes during preparation for and conduct of democratic elections is not easy, but the goal to cover all processes may take periods of many electoral cycles. Free, fair and credible democratic elections can be organised without an EMB achieving best electoral practices in each activity of every election process.

This work sets out to explore how best to combat election irregularities and the extent to which they impact on the organisation of credible democratic elections. There may be relevant dimensions of the drive to combat the reduction of election irregularity that cannot be explored in this work at this time, for example, to what extent can a credible election be organised and conducted without a sound infrastructure, or in the alternative are there minimum levels of the combat of against irregularities below which an election becomes of questionable validity? It is hoped that continued research in the quest to combat election irregularities will throw light on some of these untouched issues.

The awareness of the pursuance of the quest to reduce election irregularities in the preparatory processes for an election, as well as those regarding the conduct of an election, can impact positively on election observers and stakeholders. It is not difficult to identify where the quest to combat election irregularities is being sincerely pursued as transparency and adherence to the procedures laid down are two of the pillars on which the drive to reduce irregularities lie.

In applying the quest to combat election irregularities measures must be taken by the EMB concerned to carry out continuous monitoring of all preparatory processes aimed at ensuring that full compliance with procedural rules and instructions, which are among the chief causes of election irregularities. Developments in electoral technologies, such as biometric science that allows the matching of biological features to confirm identities, use of electronic voting machines (EVMs), Internet-based voting, open source technologies (OSTs) and online disputes resolution (ODR) facilities, point to a promising future for technology to aid the quest for combating election irregularities. The dimensions of the quest to reduce election irregularities allow a brief opportunity to examine the concept of the phrase itself and discuss whether or not it is suitable for universal application to EMBs and democratic elections. In a similar vein, the relationship between the quest to combat election irregularities and best electoral practices has been considered.

The quest to combat election irregularities with a view to reduce their occurrence to the irreducible minimum has attracted my attention and received my exposure over the past thirty-five years in working on electoral issues and, supported by extensive research, this work is intended to commence a conversation which other electoral commentators might wish to join and take forward. It should be remembered that most stakeholders are much more interested in the outcome of democratic elections pure, simple and undiluted, than by the intervention by dispute resolution mechanisms.

Carl W. Dundas

Milton Keynes

Acronyms and Abbreviations

Note about the Author

Carl W. Dundas, LL.B, LL.M (Lon.), Barrister-at-law (Gray’s Inn) is an Election Expert. Mr. Dundas has offered technical assistance in electoral matters in many countries, including Aceh (Indonesia), Antigua & Barbuda, Botswana, Cayman Islands, Guyana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nigeria, South Africa, Tanzania and Zambia. He has been a part of the Commonwealth support team to Commonwealth Observer Groups to Bangladesh, Guyana, Kenya, Malaysia, Malawi, Pakistan, Mozambique, South Africa, Tanzania and Zambia.

Mr. Dundas advised on election organisation and management in Jamaica, Kenya, Liberia, Malawi, Mozambique, Nigeria, South Africa and Sierra Leone.

Mr. Dundas led Commonwealth Secretariat’s electoral technical assistance missions to Guyana, Kenya, Malawi, Mozambique, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania and Zambia. He carried assignments in areas such as designing electoral frameworks for a neutral and impartial electoral management body, drafting of instruments for transition from military regimes to multiparty democracy, and he organised capacity-building seminars and workshops. He co-ordinated a post-election audit exercise in Botswana (2004) and advised on the implementation of post-election review recommendations in Nigeria (2003-04).

Mr. Dundas advised on constitutional reform relating to fundamental provisions dealing with electoral legislative schemes in many countries, including Guyana,, Lesotho, Malawi, South Africa and Tanzania; and advised on electoral legislation in Antigua and Barbuda, Cayman Islands, Jamaica, Kenya, Lesotho, Liberia, Malawi, Nigeria and Sierra Leone.

Mr. Dundas led the Support Team to the Commonwealth Observer Missions to elections in Malaysia (1990), Zambia (1991), Kenya (1992), Guyana (1992 & 97), Malawi (1994), Mozambique (1994), Tanzania (1995), Zanzibar (Tanzania) and Trinidad and Tobago (2000). He also served as the technical adviser to the Commonwealth pre-election Observation Mission to Namibia in 1989 and to the Commonwealth Observer Group to South Africa in 1994.

Mr. Dundas was Chairman of the Electoral Boundary Delimitation Commission of the Cayman Islands in 2003 and 2010. As an independent electoral consultant from 2001 to 2006, Mr. Dundas advised many election management bodies (EMBs) on reform and modernisation, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Lesotho, Liberia, Nigeria and Tanzania.

In 2006, Mr. Dundas became Chief of Party of the International Foundation for Electoral Systems (IFES) Africa Union Support Program Union Support Program (funded by USAID) to advise the African Union on the establishment of a Democracy and Electoral Assistance

Unit (DEAU). The DEAU was established in May 2008 and I remained as its adviser at the Africa Union in Addis Ababa until 2010.

Other Works by the Author

Organising Free and Fair Elections at Cost-Effective Levels, Commonwealth Secretariat (1993)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 1, Part 1, Commonwealth Secretariat (1996)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 1, Part 2, Commonwealth Secretariat, (1998)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 2, Part 1 Commonwealth Secretariat (1999)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 2, Part 2, Commonwealth Secretariat (1999)

Election Management Bodies: Constitutive Instruments, Commonwealth Secretariat, (1999)

Improving the Organization of Elections: A 2006 Perspective, Ian Randle Publishers, 2006

Observing Elections the Commonwealth’s Way: The Early Years, Ian Randle Publishers (2007)

The Lag of 21th Century Democratic Elections: In the African Union Member States, AuthorHouse, USA, 2011

My Favourite Election Anecdotes and Snippets, AuthorHouse, USA, 2012

My Wonderful World of Elections, AuthorHouse, USA, 2011

Close Elections and Succession in the African Union, AuthorHouse, USA, 2012

Electoral Essays and Discourses, AuthorHouse, USA, 2014

Exploring Best Electoral Practices, AuthorHouse, USA, 2015

Election Administration: Designing Dimensions of Legal Reform, AuthorHouse, USA, 2015

Introduction, historical context of election irregularities

The age of digital democracy is approaching in respect of some countries and it is worth the while taking a cursory glance at the precursor of election irregularities and considering the prognosis for the future without election irregularities. Election irregularities were known in Roman times so much so that laws were passed to combat them. An example of this was the Lex Acilia Calpernia, which was passed during the Roman Republic in 67 BC mandating permanent exclusion from office in cases of election corruption.¹

In more recent times, the rotten and pocket boroughs of the United Kingdom presented a picture of election irregularities on a large scale just ahead of wide-ranging electoral reform in the UK in the 19th century. Rotten boroughs were nomination boroughs where constituencies prior to the Reform Act of 1832 had very small electorates which were used to gain influence in the House of Commons. The rotten boroughs belonged to an electoral system where father passed on constituencies to their sons. There were few voters in some of the constituencies and the vote was not secret and so voters could not freely vote for their choice. The term ‘rotten borough’ was used in the 18th century to mean a parliamentary borough with a very small electorate. The term ‘rotten’ connoted corruption and long-term decline. The boroughs concerned were once flourishing centres in the distant past, but had lost population and wealth, but the boundaries of voting districts were not revised and so the boroughs kept their representative strength in parliament.

The case of Old Sarum illustrates the point. It was an influential centre in the 12th century when a town was established in the environs of the cathedral there and when the Salisbury Cathedral was built the population, including the merchants, drifted towards the new Cathedral in Salisbury. However, despite the loss of population in Old Sarum, it retained its right to elect two members of parliament.

Rotten boroughs were controlled by landowners. The rotten boroughs were often sold for money or other favours. Examples of rotten boroughs were:

•  Old Sarum in Wiltshire which had 3 houses and 7 voters;

•  Gratton in Surrey which had 23 houses and 7 voters;

•  Newtown on the Isle of Wight which had 14 houses and 23 voters; and

•  Bramber in West Sussex had 35 houses and 20 voters.

Pocket boroughs were parliamentary constituencies owned by one man who was known as the patron. The patron controlled the voting rights and he could nominate two members who represented the borough. Some big landowners owned several pocket boroughs, for example, at the beginning of the 18th century, the Duke of Devonshire and Lord Darlington both had power to nominate seven members of the House of Commons.²

Types of election irregularities

Lord Denning (English Judge) in Morgan v Simpson put forward three propositions with respect to election irregularities, namely:

•  If the election was conducted so badly that if it was not substantially in accordance with the law as to elections, the election is vitiated irrespective of whether the result was affected or not. This is shown by the Hackney case where two out of 19 polling stations were closed all day, and 5,000 voters were unable to vote;

•  If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the result of the election. This is shown in the Islington case where14 ballot papers were issued after 8 p.m.

•  But even though the election was conducted in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – it did affect the result, then the election is vitiated. That is shown by Gunn v Sharpe when the mistake in not stamping 102 ballot papers did affect the result.³

Following in the mould of Lord Denning’s foregoing utterances, Justice Redhead, in the case of Halstead v St. Clair Simon in the Antigua and Barbuda High Court held that an election in a constituency in Antigua was void because of widespread irregularities, which included late opening of the polls, shortages of ballot papers and illegal extension of polling beyond the prescribed hours.⁴

Recent Canadian and Australian experiences

The foregoing election irregularities revolved around non-compliance with polling regulations and rules. Undermentioned cases will focus on non-compliance with voting procedures (Canada) and errors by electoral officers (Australia).

The Canadian experience

An example of election irregularities in Canada may be seen in developments post-general election of 2011 in that country. The May 2 2011 general election in the electoral district of Etobicoke Centre, Ontario was challenged in the Ontario Superior Court. A judicial recount for that election declared the winning candidate to be elected by a margin of 26 votes. The second place candidate brought a court action requesting that the election be overturned on the basis that irregularities had affected the results. The Court declared the results of the contested election to be null and void.

The reasons for the finding of the election results at the Etobicoke Centre to be null and void were based on evidence that election officers had made a significant number of administrative errors. This conclusion was reached after a review of documented voting records in ten out of that district’s 236 polling stations. The judge found that, in the ten polls reviewed, procedural irregularities invalidated 79 votes. Some 52 votes were invalidated because election officers made serious errors in the administration of voter registration procedures and the remaining 27 cases involved serious errors within the application of identity vouching procedures. Of the 79 votes set aside, 41 were deemed invalid because the required documentation could not be found. Twenty-seven other votes were rejected because individual election officers had improperly recorded legally invalid information, or not recorded it at all. Eleven votes were rejected because election officers had not applied a legal requirement to ensure that each person vouching for the identity of another voter was first established to be a registered voter, and confirmed to be living within the same polling division boundaries as the voter for whom they were vouching. Because the 79 irregular votes within these ten polls exceed the 26 vote plurality that had originally decided the election, and citing case law precedents that established if the numbers of irregular votes exceeds the plurality of votes cast, the election cannot stand, Judge Lederer held the Etobicoke Centre election overturned.

The sitting member of Parliament for Etobicoke appealed the judgment of the Ontario Superior Court to the Supreme Court of Canada. The Court’s decision was split 4/3 in ruling in favour of the appellant and confirming the original election result in the Etobicoke Centre. The issue was what constituted irregularities that affected the result of the election. The majority held that only votes cast by persons not entitled to vote are invalid. The minority view was that irregular votes should be considered invalid, and that sufficient proven administrative irregularities were a valid reason to annul an election. The minority felt that the term should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial.

The majority indicated that two tests should be met in order to demonstrate that an irregularity affected the result of an election. First, it is necessary to show that a statutory safeguard associated with establishing entitlement to vote was not properly administered. Second, the judge must decide, based on all the evidence before the court, whether a person who voted was not entitled to vote. The majority found no proof that administrative breaches of statutory provisions had resulted in ineligible persons voting. The evidence before the court was deemed not to meet the test for annulment of an election prescribed by the Canada Elections Act. However, the Court indicated that election officers made serious errors at the Etobicoke Centre election and in other circumstances could contribute to a court overturning an election.⁵

The development regarding the Etobicoke Centre elections led the Chief Electoral Officer of Canada to take measures to improve compliance with procedures and standards on voting days. A review of the electoral process was set in motion focussing on compliance and a national audit was mandated pursuant to the review to examine the documentation of the polls. Overall, the audit estimated that irregularities occurred in 1.3 percent of all cases of Election Day voting during the 2011 federal election. The audit indicated that the application of specific legal safeguards, in place to ensure each elector is actually eligible to vote, were seriously deficient in more than 165,000 cases due to systematic errors made by election officials. Averaged across 308 ridings, election officers made over 500 serious administrative errors per electoral district on Election Day.

The review established that there were multiple causes of errors, namely: complexity; supervision; recruitment; training; updating the list of electors, and historical and cultural and jurisdictional factors all played contributing roles in the errors made by the election officers on Election Day. Stakeholders involved in the review agreed that addressing the compliance required a fundamental redesign of the voting process. Redesign, through simplification and rationalisation was necessary in order to reduce the risk of errors so that the administrative burden that was placed on election officers was manageable. Such redesign would involve extensive amendment to the framework of the electoral legislation.

The broad heads of the recommendations of the Compliance Review Final Report were:

•  Minimize the need for registration and vouching on Election Day;

•  Implement quality control mechanisms at polling sites;

•  Reduce procedural complexity associated with registration and voting;

•  Simplify written instructions for all election officers;

•  Adopt a user-centric approach to designing and testing procedures, materials and training;

•  Improve working conditions for polling staff;

•  Modify the approach for recruiting election workers;

•  Improve the quality of training provided to election officers;

•  Measure and report on compliance at every election;

•  Incorporate compliance requirements into the redesign and testing of a new voting services delivery model;

•  Assist legislators in reviewing the electoral legislation framework; and

•  Engage stakeholders in a continued discussion regarding electoral process evolution.⁶

The Australian experience

In 2010 federal election in Australia, ballot boxes used in a pre-polling centre were opened prematurely before the polls closed at 6 p.m. on the Saturday of the election. The Electoral Act provides for pre-poll voting. It states that a pre-poll ordinary ballot box that is not full may be used on a subsequent day of polling and that the ballot box is made ready to receive additional votes by opening the flap through which ballots can be inserted. The Electoral Act did not authorise the opening of a pre-poll ordinary ballot box at a pre-poll voting office before the close of the poll.

The Officer-in-Charge (OIC) of a particular polling each day and after all public access is locked at the polling place, opened the small ballot boxes containing ordinary papers in the presence of at least one of the pre-poll voting officers. Once the seals were broken and the details recorded and witnessed in the OIC return, the contents of the two smaller ballot boxes containing the House of Representatives and Senate ballot papers were amalgamated into the larger plastic ballot boxes, one for the House of Representatives ballot papers and the other for the Senate ballot papers. These larger ballot boxes were located in a secure room within the pre-poll voting office. After the amalgamation of papers had taken place, seals were replaced on all the ballot boxes containing ordinary ballot papers and recorded on the OIC return.

The OIC indicated that he had started the practice of opening the ballot boxes to allow the transfer of ballot papers from the small ballot boxes used by the public, and when they were full after each day, to the larger ballot boxes stored in a secure room located at the back of the pre-poll voting office. The small ballot boxes, once emptied, were used the following day.

The incident was discovered when a duly appointed scrutineer (an appointed representative of a candidate) noticed that the House of Representatives ballot papers contained in the large plastic ballot box, which was semi-transparent, were all stacked and flat unlike other ballot boxes where the contents were very disordered and jumbled. The ballots were admitted to the count at the time, but a subsequent investigation was ordered.

The investigation into the circumstances of the provisions of the premature opening of ballot boxes found no evidence of malevolent intent on the part of the OIC or was there any evidence of vote tampering. The training of poll officials, particularly the complexity of the material prepared for distribution to polling officials ahead of the election, was criticised. External legal advice obtained by the AEC suggested that it was prudent to exclude the votes from the count. The exclusion of the votes from the count did not affect the outcome of the election, but some 4,000 votes were disenfranchised because their votes were not included in the count.

Lost West Australia Senate ballot papers

During 2013 federal election 1370 West Australia (WA) Senate ballot papers could not be located. On 7 September 2013 a half-Senate election was held in WA to fill six of that States’ Senate seats, which were to become vacant in July 1 2014. Three Liberals and one Labor candidate were elected to the first four Senate positions. The fifth and sixth positions were initially announced as being won by the Palmer United Party (PUP) and the Australian Labor Party (ALP). The election was close, the critical margin at the point of exclusion of candidates with insufficient votes to yield a quota that determined the last two Senate positions was 14 votes out of 1.3 million votes in total. A recount was requested by a number of candidates and granted in accordance with the Electoral Act in an attempt to give the electorate confidence in the outcome.

During the recount, 1370 ballots were missing. The AEC had the counting record sheets which provided information about the preferences expressed by the voters whose ballots were missing. Without these ballots the result was different after the recount, with Australia Sports Party and the Greens Party candidates declared as winning the fifth and sixth spots, with the margin at the critical point of exclusion that determined the final two Senate positions being only 12. Had the 1370 ballots been available to be counted the original result (PUP and ALP filling the fifth and sixth Senate positions) would have been confirmed, but with a margin of only one vote at the critical point exclusion (out of 1.3 million) determining the final Senate positions.

The three person Electoral Commission concluded that the result of the election could have been different if the missing ballots were included in the recount and petitioned the High Court, sitting as the Court of Disputed Returns, to declare the half-Senate election in WA void and that a new election should be held.

On 25 February 2014, the High Court ruled that the result as declared was to be voided and a new election for the half-Senate in WA should be held.⁷ The new election was held on 5th April 2014. An independent investigation by a former Commissioner of the Australian Federal Police (appointed by the Electoral Commissioner) to look into the circumstances that led to the loss of the ballots concluded that the ballots were most likely mistakenly destroyed with the recycling of materials. The investigation was critical of the systems and controls put in place by the West Australian AEC Office for the control, storage and movement of ballot papers.⁸

Strategies to reduce election irregularities

The 21st century should experience steady