Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections A. Burdens of Proof In most legal contexts, the burden of proof rests with the party making the allegation.173 For instance, in the United Kingdom it is “fair to place the burden of proof on the person who positively asserted a particular state of affairs, rather than the person who denied that a state of affairs existed, given the difficulties which arose where proof of a negative was required.”174 The Court recognized that this principle is common in every civil legal action.175 For election challenges, the burden will generally fall on the persons challenging the outcome of the election or alleging misconduct on the part of another. This structure implies that there is a presumption of regularity on the part of officials and official actions.176 As the party asserting that some aspect of the election should be overturned, the petitioner can reasonably be expected to bring forward evidence to prove the assertion. Requiring the challenged party to affirmatively prove that no misconduct took place or no irregularity occurred would serve as an invitation to losing candidates or parties to bring challenges as a form of harassment. The prevailing party could be forced to vigorously assert the validity of an election in multiple recurrent hearings or face having its lawful, proper election result overturned due to the difficulty of proving a negative. But, there is at least one argument in favor of having the burden of proof rest on the challenged party: in the case where an entrenched ruling party or polity is being challenged by a minority, or the challenge is against the electoral management authority itself, the challenger may well lack the resources to properly maintain its rightful challenge while the challenged party would have the resources to produce evidence of a proper election. In such a case, it may be appropriate to apportion some burden of proof to the more powerful of the parties to the dispute. Nonetheless, this is an atypical assignment of the burden of proof for the aforementioned reasons, and is not well supported by any of the most common rule of law principles. In short, in most actions relating to electoral complaints, the burden of Black’s Law Dictionary 196 (6th ed. 1991). McVicar v. United Kingdom, Eur. Ct. H.R., App. No. 46311/99, Judgment of 7 May 2002, ¶ 40. 175 Id. ¶ 41. 176 Barry H. Weinberg, The Resolution of Election Disputes: Legal Principles That Control Election Challenges 16 (2d ed. 2008). 173 174 60