Chapter 1: International Standards proof should be on the party alleging that some fraud or actionable irregularity has occurred. This is the typical understanding of how a burden would be applied, and the burden should be shifted to the defending party only in extreme situations or to prove an affirmative defense. B. Standards of Evidence In addition to determining which side in a dispute bears the burden of proving its case, the election law should also define the degree to which that side must prove its case in order to persuade the arbiter or finder of fact that it is correct. This is usually called the “standard of evidence.” There are many different standards applied in legal systems throughout the world, and the one that is used depends on a multitude of factors, including the unique legal traditions of the country, the severity of the allegation being made, the severity of the remedy sought, and the nature of the evidence to be introduced at trial. There is currently no international consensus on what standard of evidence the challenger must meet in order to establish electoral fraud or other misconduct. There are three standards that are frequently applied in election cases, however: preponderance of the evidence; evidence beyond a reasonable doubt; and clear and convincing evidence.177 “Preponderance of the evidence” is also called “greater weight of the evidence” or “balance of probabilities,” and is the idea that one party has offered evidence that seems more likely to be true than not. This is the general standard that is applied to civil actions in many, if not most legal systems.178 Since election complaints are usually treated as civil (rather than criminal) cases, this may be a reasonable default standard to apply in election cases.  There are several possible drawbacks to using a preponderance standard, however, since it might prove too easy a standard for the challenger to meet in many election complaints. As a practical and philosophical matter, to enforce the rule of law, official election results have a presumption of validity and should not be overturned because the factual balance seems to tilt slightly in favor of a challenger. Election results based on complex legal and administrative processes should generally stand; See generally Huefner, supra note 25, at 313-14. Id.; see also Prodan v. Moldova, Eur. Ct. H.R., App. No. 49806/99, Judgment of 25 April 2006 (discussing all three standards’ use in international law); In re Gen. Election, 605 A.2d 1164 (N.J. Super. Ct. Law Div. 1992) (comparing proposed use of preponderance of evIdence and clear and convincing evIdence standards in U.S. election case). 177 178 61