When Are Elections Good Enough? Validating or Annulling Election Results can demonstrate that s/he would have won but for the irregularity, the challenger may be declared the winner. In other U.S. states, a challenger only needs to prove that the irregularities have made the will of the voters uncertain (the “uncertain outcome” test). Where a challenger can prove that an irregularity could have affected the result, an annulment may be ordered, but a different winner will not be declared, as is sometimes the case under the “but for” test.30 Tests to determine whether irregularities are outcome determinative: The “but for” test: Where a challenger can demonstrate that the winner would not have won but for the irregularity, the election may be annulled. The “uncertain outcome” test: Where a Outside the U.S., jurisdictions express their approach challenger can prove that an irregularity in various ways, but the challenge in practice is largely could have affected the result, an the same: what does a challenger need to prove to annulment may be ordered, but a different establish that irregularities have affected the winner will not be declared, as is outcome? On the whole, non-U.S. jurisdictions lean sometimes the case under the “but for” toward the “uncertain outcome” test. The Venice test. Commission’s Code of Good Practice in Electoral Matters provides that the law in Council of Europe member states should provide for annulment of elections “where irregularities may have affected the outcome” [emphasis added]. In the U.K., where a challenger seeking to overturn the result of an election based on certain kinds of misconduct by the winning candidate must show that “such practices so extensively prevailed in an election that they may reasonably be supposed [emphasis added] to have affected the result.” In Australia, misconduct by a candidate provides grounds for annulment if “the Court is satisfied that the result of the election was likely to be affected [emphasis added], and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”31 Each of these approaches is legitimate and there is no point of principle that would decisively favor one over the others. The “but for” test requires a greater degree of certainty before annulment may be ordered, which may make it difficult or impossible for a challenger to prove the outcome would have been different, especially on the expedited timelines that often govern election results cases. Annulment under this standard will only be available in more clear-cut cases. The more relaxed “uncertain outcome” standard gives adjudicators more latitude to use annulment as a remedy in cases where it may be difficult or impossible for challengers to produce definitive evidence that an election has been affected by irregularity. Given this apparent trade-off between responsiveness and certainty, the appropriate standard for a particular jurisdiction will depend in part on the strength of rule of law and the competence and impartiality of the EDR body. Where courts are strong and public confidence in their impartiality is high, it may be appropriate to allow the adjudicator greater discretion in deciding whether results have been affected. Jurisdictions where there is a greater risk of partisan bias among decision-makers might want 30 31 Ibid. Commonwealth Electoral Act 1918, as amended, section 362(3). 7