International Foundation for Electoral Systems This way of approaching annulment was built into the Kenya Election Act, section 83 of which provided that: No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or [emphasis added] that the non-compliance did not affect the result of the election. In reaching its decision, the Kenyan Supreme Court acknowledged that, as the respondent had claimed, “there was no evidence demonstrating that the alleged irregularities were of a sufficient magnitude to affect the results.”27 However, the court found that “illegalities and irregularities” existed in the electoral process, especially counting and transmission of results, that rendered the result of the election “opaque and unverifiable, and therefore indeterminate.”28 Further, these irregularities were such that the election was not in line with the Constitution and applicable laws (the first part of the section quoted above) and ordered a revote. Since the time of that decision, some commentators have questioned the court’s decision in part due to dissatisfaction with the mixed approach to annulments set out in the law, which has since been amended to a “outcome determinative” approach. In summary, there are three approaches to annulment internationally: 1) A prescriptive approach, in which annulment depends on the presence of certain kinds of irregularity, without regard to their impact on the outcome of the election; 2) An outcome-determinative approach, in which fraud or irregularities can lead to the annulment of an election, provided that they affect the result of the election (i.e., the allocation of mandates); and 3) A mixed approach in which certain irregularities are so serious that they provide grounds for annulment even in the absence of proof that the result was affected, while other irregularities can provide grounds for annulment only if they did affect the result. When Irregularities Are Outcome-Determinative While the outcome-determinative approach seems the most reasonable in principle, it can be exceedingly difficult to apply in practice. Jurisdictions in which an outcome determination is a precondition for annulment have approached this problem in various ways. The issue has been explored most thoroughly in the U.S., where two distinct approaches have emerged at the state level. In some U.S. states, a challenger must prove that the election result would have been different but for the irregularity (the “but for” test).29 Where a challenger can demonstrate that the winner would not have won but for the irregularity, the election may be annulled. Where the challenger 27 Raila Amolo Odinga & Another v. Independent Electoral Commission & 2 Others (2017). Ibid. 29 Election Law Manual, William and Mary School of Law, Election Law Program Website, Chapter 9. 7-8. Available at http://www.electionlawissues.org/Resources/Election-Law-Manual.aspx. 28 6