When Are Elections Good Enough? Validating or Annulling Election Results I. Introduction The high-profile annulment of the 2017 Kenyan presidential election surprised many election watchers in Africa and across the globe. All elections suffer from challenges and irregularities, to varying degrees of seriousness, including poll worker error,1 acts of God,2 and violence,3 without these challenges necessarily changing the outcome of the vote or leading to a full annulment. A decision to annul an election is one that should not be taken lightly. Repeat elections impose unexpected costs on state budgets and candidates; the normal operation of legislatures and governments may be disrupted while a revote is organized; candidates may refuse to participate in the fresh elections, leading to a political crisis;4 and repeat elections may themselves be subject to irregularities.5 Most concerning, however, is the potential for bad actors to use annulment of results (under the guise of ensuring “secure elections” or as redress for “widespread irregularities”) as a tool to thwart the will of voters. In Iraq, the Election Commission annulled votes in 1,021 polling stations on allegations of fraud, excluding primarily out-of-country voters from seven countries as well as internally displaced voters residing in Sunni-predominant provinces of Anbar, Erbil, Saladin, Diyala, Nineveh and Kirkuk – a move that some at the time claimed was politically motivated.6 Similarly, the annulment of the presidential election in Zanzibar in 2015 was perceived to be politically motivated to avoid an opposition victory.7 That being said, where an election has been so compromised that the result cannot be said to reflect the will of the voters, annulment will be an appropriate remedy. Surprisingly, the legal issues surrounding annulments have not been explored more fully outside of a strictly United States (U.S.) context.8 From a 1 Joshua A. Douglas, “A ‘Checklist Manifesto’ for Election Day: How to Prevent Mistakes at the Polls” (2016). UKnowledge Law Faculty Scholarly Articles. 601. https://uknowledge.uky.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1601& context=law_facpub. 2 Stephanie Sigafoos et al., “Storm a hindrance on primary election day in the Lehigh Valley, but the voting goes on,” The Morning Call, May 15, 2018, http://www.mcall.com/g00/news/elections/mc-nws-election-day-lehighvalley-20180514-story.html?i10c.encReferrer=&i10c.ua=1&i10c.dv=14. 3 Clark Gibson, Karen Ferree, and James Long, “Election Violence and Voting in Emerging Democracies,” UC San Diego Policy Design and Evaluation Lab, https://pdel.ucsd.edu/elections-governance/election-violence.html. 4 Samuel Gebre and Felix Njini, “Low Voter Turnout, Violence Overshadow Kenyan Election Rerun,” Bloomberg, October 26, 2017, https://www.bloomberg.com/news/articles/2017-10-26/kenyans-vote-in-election-rerunboycotted-by-main-opposition. 5 Anthony Langat, “The Cost of Kenya’s Repeat Election,” U.S. News & World Report, October 25, 2017, https://www.usnews.com/news/best-countries/articles/2017-10-25/kenyas-repeat-election-comes-with-a-heavyprice-tag. 6 “Iraq’s election commission annuls thousands of votes,” Al Jazeera, May 30, 2018, https://www.aljazeera.com/news/2018/05/iraq-election-commission-annuls-thousands-votes-iraq180530201934317.html. 7 “The Political Crisis in Zanzibar,” Center for Strategic and International Studies, March 18, 2016, https://www.csis.org/analysis/political-crisis-zanzibar 8 A number of publications have examined the situation in the United States, and we have relied on their insights when discussing the American context. See, for example, Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS; and William and Mary School of Law, Election Law Manual, 9-7 to 9-8, http://www.electionlawissues.org/Resources/Election-LawManual.aspxhttp://www.electionlawissues.org/Resources/~/media/Microsites/Files/election/Chapter%20Nine%2 1