the fight they have started to restore to the people the right to govern themselves without
dealing with a stacked deck.”86 Measuring remedies’ efficacy in deterring further violations will
require sustained studies over time to see if the acts that have been identified and adjudicated
decrease, or whether the actions have no deterrence effect. If a decline is identified, further
contextual research would be needed to isolate the change to the remedies used, and to ensure
that other factors do not contribute to the drop in actions (such as a change in the electoral
system).
6.
A remedy should reinforce the perception of fairness and the credibility of the
process
Finally, effective remedies are essential for undergirding the credibility of the election
dispute process, as well as the wider electoral process. Research focused on the effectiveness of
institutions administering a particular system suggests that people largely react to the fairness by
which authorities make decisions and exercise authority, and that these reactions “shape both
their willingness to accept decisions and their everyday rule-following behavior.”87 Additionally,
“these effects have been found to occur when substantial issues, such as personal freedom, are
involved.”88 In terms of the perception of fairness and credibility of the overall process, citizens
must believe the will of the voter is ultimately reflected in the election result, and that losing
candidates have a right to redress via an effective dispute resolution process that considers all
legitimate complaints.
This right to redress encompasses a right to due process, whether a complaint or
irregularity is dealt with administratively or through the court system. Where there are serious
irregularities, the adjudication body should schedule a hearing and enable the claimants to be
fully informed of the status of their complaints.89 The ECtHR has also affirmed that the right to a
fair trial and access to a remedy is not limited to the courts, but applies to administrative
proceedings. In Öztürk v. Germany the ECtHR held that
it would be contrary to the object and purpose of Article 6…which guarantees to
‘everyone charged with a criminal offence’ the right to a court and to a fair trial, if the
State were allowed to remove from the scope of this Article a whole category of offences
merely on the ground of regarding them as petty . . . [c]onferring the prosecution and
punishment of minor offences on administrative authorities is not inconsistent with the
Convention provided that the person concerned is enabled to take any decision thus
made against him before a tribunal that does offer the guarantees of Article 6.90
Studies of the 2000 U.S. Supreme Court decision in Bush v. Gore suggest that in gaining
acceptance of a controversial decision, the Court benefitted from the widespread public view of
86
DONSANTO, supra note 56 at 240.
87TOM R. TYLER, WHY PEOPLE OBEY THE LAW, PRINCETON UNIVERSITY PRESS (2006)
88
Id at 284. Findings consistently suggest that the legitimacy of authorities and institutions is linked to the fairness of
the procedures by which they exercise their authority. These findings link legitimacy to the degree to which institutions
are “just” institutions. Hence, the pursuit of public support requires institutions and authorities to adhere to lay
principles of justice. The effort to create and maintain legitimacy, in other words, causes institutions to focus on those
who are being led, and their conceptions of procedural justice.
89 GUIDELINES FOR UNDERSTANDING, supra note 7.
90 Öztürk v. Germany, App. No. 8544/79, Eur. Ct. H.R. (1984).