International Foundation for Electoral Systems ballot: “a fault in this regard is by its very nature conductive to influence the outcome of elections.”16 However, neither the court nor the litigants questioned whether the results influenced the outcome by candidate as a matter of fact. By deciding on annulment based on the presence of serious irregularities without considering whether the results were impacted, the court made what was arguably a bad decision. Rather than incurring the cost and delay of holding a new election, the government simply passed a law appointing those who had been elected in the nullified vote to the Constitutional Commission, a decision that was not particularly controversial, since few people doubted that the results from the election accurately reflected the will of the people.17 Under the circumstances, it might have made more sense for the court to look for alternative remedies, such as censuring the electoral authorities, rather than annulling the election. The better approach as a matter of principle, and by far the more common approach in practice, is for an election to be annulled only when fraud or irregularity has affected the outcome of an election (i.e., the numerical result and declaration of a winner). Where the outcome has not been impacted, other remedial action, such as prosecution for fraud, may still be appropriate, but the results are allowed to stand. This “outcome-determinative” approach is followed in almost all Council of Europe countries,18 as well as the U.S.,19 Canada,20 and Australia.21 Between the prescriptive approach to annulment on the one hand and the outcome-determinative approach on the other, the United Kingdom (U.K.) and a number of commonwealth countries with similar electoral legal frameworks have followed a middle path. That approach was most famously summarized by Lord Denning in Morgan v. Simpson,22 as follows: 1. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not 16 Decision of the Icelandic Supreme Court December 8, 1994, in case no. 425/1994. Reynir Axelsson, “Comments on the Decision of the Supreme Court to invalidate the election to the Constitutional Assembly,” http://stjornarskrarfelagid.is/wpcontent/uploads/2011/07/Article_by_Reynir_Axelsson.pdf. 18 The various approaches in the Council of Europe countries are surveyed in the Venice Commission Report on the Cancellation of Election Results, CDL-AD(2009)054, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2009)054-e. 19 See the discussion in William and Mary School of Law, Election Law Manual, 9-6 to 9-9. See also Mark Braden, Disputed Elections Post Bush v. Gore, 6-8, https://www.democracy.uci.edu/files/docs/conferences/2011/I%20Disputed%20elections%20post%20Bush%20v.%20Gore%20-%200404111%20Mark%20Braden.pdf. 20 See the decision of the Supreme Court of Canada in Opitz v. Wrzesnewskyj, 2012 SCC 55, para 2, at https://scccsc.lexum.com/scc-csc/scc-csc/en/item/12635/index.do. 21 Commonwealth Electoral Act 1918, as amended. Sections 362 and 365. 22 [1975] 1 QB 151; [1974] 3 All ER 722; [1974] 3 WLR 517. It should be noted that Morgan v. Simpson dealt with irregularities resulting from irregularities in the conduct of an election. The UK Representation of the People Act, 1983. S. 164. http://www.legislation.gov.uk/ukpga/1983/2/section/164 also allows for the annulment of an election if a candidate or his or her agent has committed certain “corrupt or illegal practices,” such as bribery and intimidation of voters, and that “such practices so extensively prevailed in an election that they may reasonably be supposed to have affected the result.” 17 4