When Are Elections Good Enough? Validating or Annulling Election Results typically enjoy a presumption of validity and challengers bear the burden of showing why they should be set aside.62 Following the 2017 Liberian presidential election, for example, the country’s Supreme Court found that while the appellants had demonstrated that some violations existed in the election process, they had failed to discharge their burden under the law to prove that these violations were outcome determinative.63 While election results enjoy a presumption of validity in virtually all jurisdictions, the extent of a challenger’s burden of proof varies depending on the jurisdiction and the circumstances of the challenge. In many cases it will be difficult or impossible for a challenger to obtain all the evidence needed to support a claim. Because an electoral process is a technically complex operation, relevant evidence, such as results sheets, rejected ballots, official forms and voter registry documents, may not be easily obtainable by an individual outside the EMB, or at least not within the tight deadlines that usually are set for election petitions. Indeed, as discussed further below, it is often difficult for EMBs themselves to obtain such evidence on short notice. A petitioner is typically required to produce evidence supporting his or her claim at the time of filing, and in some countries the complaint will not be considered valid if insufficient evidence is submitted, or it may be dismissed without the adjudicatory body seeking further evidence via an investigation.64 For these reasons, legislature and courts in many jurisdictions have developed rules of evidence that balance the presumption of validity against the need to get at the truth. In some European civil law jurisdictions, the presumption of validity is usually expressed as a requirement for a plaintiff to establish a prima facie case, following which the courts or electoral authorities have the authority to undertake further investigation.65 In some common law jurisdictions, the plaintiff’s burden does not extend to all elements of a challenge in all circumstances. For example, in the words of the Supreme Court of Canada: “an applicant who has led evidence from which an irregularity could be found will have met his or her prima facie evidentiary burden. At that point, the respondent runs the risk of having the votes in issue set aside, unless he or she can adduce or point to evidence from which it may reasonably be inferred that no irregularity occurred, or that despite the irregularity, the votes in question were nevertheless valid.”66 Requiring challengers to establish a basic case at the time of filing is not unreasonable, as in IFES’ experience globally, frivolous complaints and false allegations are common in elections. Indeed, many systems have expedited procedures for dismissing claims where insufficient evidence has been provided to deal with such cases. But such rules must be balanced against the need to ensure that legitimate 62 Chad Vickery ed., Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE), IFES, 46, https://www.ifes.org/sites/default/files/guarde_final_publication_0.pdf. 63 “Liberia court authorises presidential runoff with conditions,” The Punch newspaper, December 7, 2017, https://punchng.com/liberia-court-authorises-presidential-runoff-with-conditions/. 64 Rule 11(b)(3) of the U.S. Federal Rules of Civil Procedure provides that a complainant must certify that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” 65 Venice Commission Report on the Cancellation of Election Results, CDL-AD(2009)054, paras 65-66, available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2009)054-e 66 Opitz, para 61. 17