The sana critica system is midway between the first two in that the law does
not specify the effect that should be assigned to a given piece of evidence, but
nor is it left entirely to the free assessment of the EDRB. Instead, the EDRB
must state the reasons or justify why it attributes probative value to each of
the elements in the record.
511. Very few electoral codes and laws define the systems for weighing evidence
that should be observed by the respective EDRBs in the cases that come
before them. Some countries have adopted the free evidence system, several
have established sana critica rules and a few more have a mixed system.
512. Among the greatest impacts of the introduction of electronic voting
systems is their impact on the different EDRMs. The challenges that arise
in this context relate to ascertaining and weighing the evidence, and to the
mechanisms by which challenges will be resolved. In countries where the
challenges are resolved by regular courts which are part of the judicial branch,
these issues may need to be regulated by special provisions that require
reform to the law. Investigating and assessing these aspects effectively may
require special training for the staff of the EDRB. The rules for weighing
electronic or digital evidence should be reviewed and, similarly, require the
adoption of special measures or reforms.
Box 7.8. Electronic voting and electoral dispute resolution:
California
Avery Davis-Roberts
Electronic voting in California is not subject to special mechanisms for the resolution
of disputes that might arise from its implementation. Instead, e-voting disputes are
resolved through existing channels.
The use of electronic voting and the resolution of disputes regarding the technology
are widely reported in the press and through civil society organizations in California
and in the United States more broadly. Despite recent controversies regarding voting
technologies and widespread concern about their use, there remains a high degree
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7. Basic elements of EDR systems
b. free evidence systems, in which the EDRB can weigh the evidence
offered, admitted and produced without any legal obstacle, so that
the judge’s opinion is formed freely without impediment of any kind,
particularly legal impediment;
c. systems of logical and reasonable rules of evaluation and procedure
for arriving at opinions or judgements (in Spanish, ‘sana critica’), in
which the EDRB has the power to determine the efficacy of each of the
elements in the record of the case in keeping with the rules of logic and
the maxims of experience; and
d. mixed systems which combine elements of these three systems.
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