Chapter 3 CHAPTER 3 Strict Compliance is Required With Mandatory Procedures but not With Directory Procedures So far there have been two basic requirements set out for winning an election challenge. A person challenging an election: 1. Must follow the procedures in the law when filing the challenge (Chapter 1) and 2. Has the burden of proving that irregularities changed the result of the election or rendered it impossible to determine the outcome of the election (Chapter 2). Added to these two requirements is a third. In order to win an election challenge, a person: 3. Must prove that irregularities involved procedures that were mandatory, not just directory. A. The mandatory/directory analysis is used widely in resolving election dispute cases. In talking about the resolution of election disputes, the words “mandatory” and “directory” are applied to election procedures that are set out in state statutes. We know that in resolving election disputes the facts are examined in the light of the legal requirements in state election statutes. A key part of this process is a determination of whether a state election statute is mandatory or directory: • • If a statute is mandatory, and the election procedures set out in the statute were not followed, the actions that were taken are invalid. If a statute is directory, and the election procedures set out in the statute were not followed, the actions that were taken are not invalid. Let’s assume that the plaintiff has proven that irregularities occurred in the election. What is the impact of such proof ? Did those irregularities invalidate the ballots or election results that were challenged? In most instances, the answer will depend on whether the irregularities violated a mandatory or a directory statute. If the statute is mandatory, it must be followed and the irregularities will cause the challenged procedures to be invalid. If the statute is directory, it should be followed but the irregularities will not cause the challenged procedures to be invalid. It is not easy to determine whether a statute is mandatory or directory. Even if a statute specifically sets out the election procedures that must be followed, defines exactly how those election procedures must be followed and states precisely who must perform those election procedures, the failure to follow those election procedures often is not enough to sustain an election challenge. Moreover, the distinction between mandatory and directory election provisions often is based on whether the irregularity is called 49