LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS Introduction The use of technology in elections is continuously evolving. Technology touches almost every part of the election process, including voter and candidate registration, voter identification, voter education, voting, counting, results transmission and complaints management. In the last decade, multiple publications have explored the advantages and disadvantages of using different forms of technology in elections and attempted to define standards for its use. 1 As more countries establish digital voter registries and develop electronic results transmission systems, allegations about the actual or perceived misuse of technology can result in contested elections and complex litigation. A lack of transparency can provide an opening for those interested in sowing mistrust and confusion to do so, eroding public confidence in elections and democratic institutions. 2 This analysis of select jurisprudence involving election technology within the election infrastructure (that is, within the election process itself, not just in day-to-day work of the EMB) reveals the importance of sufficient auditability in the EMB’s use of technology, and transparency in court proceedings. Transparency can help enhance understanding by all stakeholders of how a specific technology functions, which in turn assists with building or preserving public trust in both the election process and the adjudication of election complaints (including any scrutiny or audit process involving election technology). 3 Different types of election technology can fail for a myriad of reasons, including procurement problems, institutional capacity constraints, lack of network coverage, or other factors outside the direct control of the EMB. 4 As noted above, technology can also be deployed effectively, but nonetheless become a vector for disinformation. Given that elections are increasingly litigated, judges need to be prepared to deliberate on a range of issues involving technology, including procurement, piloting, testing, deployment, auditability, and security. Transparency in each of these phases is a condition precedent for audibility. If allegations around election technology are brought to the courts, the judiciary may need to adapt rules of procedure to allow for the consideration of digital evidence and the involvement of ICT as experts during proceedings or as friends of the court (amicus curiae). The task of judges in these cases will also be made easier if they have the opportunity to familiarize themselves with the technology and its intended use by the EMB before the election begins. “African countries are migrating from manual processes to using election technology, so knowledge of the court on technology become more prominent. Courts have a greater role to play in sorting out these disputes.” - Justice Maria Kawimbe, High Court of Zambia 1 Impact of technology on democracy: https://rm.coe.int/study-on-the-impact-of-digital-transformation-on-democracy-and-goodgo/1680a3b9f9; Venice Commission, Study on the Use of Digital Technology: https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)037-e; 2 Why public trust in elections is being undermined by global disinformation campaigns, Bluth Christopher, theconversation.com, April 28, 2022. 3 The Council of Europe, Guidelines on use of ICT in electoral processes, February 2022 makes recommendations on transparency regarding the ICT including: communicating about the development and decision process, providing information on the feasibility of the overall implementation, on procurement of the solution, providing information on how conflicting or competing principles such as privacy and secrecy versus transparency are to be addressed, and publishing the source code. 4 Late changes to legal and regulatory frameworks, lack of adequate time to procure, poor operational planning, environmental realities (lack of power or connectivity at remote polling locations) – these are not technology problems per se but feature heavily in the narratives surrounding failed election technologies. 7