LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS Sometimes, legal challenges do not relate to defects in the election technology but instead relate to the lack of or differing interpretation and understanding of the existing corpus of law and procedure relating to the technology. In a recent interview with IFES, Judge Tunheim, Chief Justice of the U.S. Federal District Court, Minnesota noted: “People sometimes don’t trust electronics…to the extent that we can have a backup for a judge or judges to look carefully to make sure that the machine works properly, then we are better off for all.”77 It is also important to note that challenges or appeals arise at different phases of the election process, giving some courts more flexibility in the remedies they order. Timelines for adjudication may also play a role in remedies ordered. While in Malawi and Kenya, the courts decided to annul and order a repoll during the post-election results adjudication phase, the German court did not. The courts in Malawi and Kenya were making their decisions soon after the elections in line with tight deadlines (although in Malawi the President and MPs had already taken office), whereas the German court issued its judgment four years after the elections. In India and in the United States, the courts acknowledged the need for time to implement any changes to the use of technology in elections. When assessing adequate remedies, the judges considered the time required to change, update or introduce a new technology, in comparison to Kenya and Malawi where the judges gave only limited time for the EMBs to reform their processes prior to the repoll. Moreover, in Kenya, the scrutiny ordered and conducted by the court within a limited timeframe and without predetermined rules raised questions as to the method and quality of the exercise, and as to the legal force of the scrutiny report prepared. The importance of there being adequate time to establish any new election technology, including for there to be public discussion of it, is highlighted in the recent OSCE/ODIHR report on the 2021 Albania elections. Although not related to a court challenge, the OSCE/ODIHR mission commented on the recent pilot of electronic voting in Albania as follows: “The very short timeframe for implementation did not allow for substantive public discourse and independent scrutiny of the new technologies…an important component for ensuring public trust.” 78 The challenge brought to the first-round results in the 2021 elections in Ecuador also showed the importance of the timing of remedies. The EMB made it clear that it would not be possible for the prosecutor or the Comptroller to conduct their requested audits of the electronic results system mid-way through the election process without compromising the integrity of the data and delaying the election process, and so the EMB refused the requests. As noted above, the apex court in Kenya also called for a constitutional amendment to extend its short 14-day deadline to rule on a presidential election petition, which includes time to conduct a potential scrutiny and recount. In Malawi, the court in its judgment gave the EMB an extensive list of recommendations and instructions for reform. The issuance of highly prescriptive instructions from the court to an EMB could, however, raise questions as to the independence of constitutionally appointed EMBs and undermine the ability of election officials to determine how to effectively conduct elections. Another concern is the capacity of the EMB to make changes ordered by a court, and IFES Interview on EDR proceedings (May 12, 2022) with Chief Justice, Judge Tunheim of the U.S. Federal District Court, Minnesota. The OSCE/ODIHR Final Report on the Albania General Elections 2021 describes how the procurement process for the voting equipment ended a month before, and the configuration of the software a week before Election Day, leaving a short preparatory period for voter education and discussion. 77 78 26