Elections on Trial: The Effective Management of Election Disputes and Violations In “Why People Obey the Law,” psychologist Tom Tyler has examined the linkage between the perceived legitimacy of institutions and systems and the procedural justice protections provided by those institutions, and his findings “consistently suggest that the legitimacy of authorities and institutions is linked to the fairness of the procedures by which they exercise their authority.”10 Tyler noted that beyond winning a case, people care about the procedures by which a decision is made (“procedural justice”).11 As such, the fairness of the EDR process influences both the perceived legitimacy of the institution providing the remedy to an electoral dispute, and the remedy itself.12 To this end, strengthening EDR procedures and processes in ways that are visible to the public prior to an election can be essential to public confidence. As prior IFES research suggests,13 public confidence in the EDR process is two-fold: it requires trust in the independence and impartiality of arbiters who are deciding cases, as well as trust in the process through which decisions are made.14 On the latter element, this in turn requires trust in the fairness, efficiency and effectiveness of the process (procedural justice protections) and high levels of transparency (open justice) so that all stakeholders have access to the process and, ultimately, can understand the legal reasoning that lead to the decisions that are made. This paper considers this second element: how election disputes – both administrative and criminal – are managed, from filing to disposition. This focus is not intended to diminish the importance of judicial independence and impartiality, which IFES has written on previously,15 but to examine in more detail how the effective management of disputes and violations can strengthen the quality and transparency of justice. IFES has found in our work internationally that EMBs dealing with electoral disputes are often unprepared to apply the legal standards necessary to protect procedural justice and unwilling to be effectually transparent in the pressured election environment. Although these EMBs are acting in a quasi-judicial capacity, they may not have the infrastructure in place to implement procedure in a 10 Tom. R. Tyler, Why People Obey the Law, (Princeton University Press ed., 2006). Id. at 5. 12 The public’s perception of an institution’s legitimacy prior to a contentious electoral ruling can be pivotal to the acceptance of that institution’s judgements. Studies of the 2000 U.S. Supreme Court decision in Bush v. Gore suggest that in gaining acceptance of a controversial decision, the Court benefitted from the widespread view of the Court as a legitimate institution. See: James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, Measuring Attitudes toward the United States Supreme Court, 47 AM. J. POL. SCI. 354, at 354 (2003). In contrast, Carter Center observers of the 2011 presidential elections in the Democratic Republic of the Congo (DRC) suggested that citizens’ belief in the inadequacy of the DRC’s dispute resolution mechanism may have contributed to widespread protest and violence during the electoral cycle as citizens resorted to protest, frustrated that there were no other avenues to express their grievances. See: Carter Center, Final Report: Presidential and Legislative Elections in the Democratic Republic of the Congo (2011). Ultimately, observers concluded that the underdeveloped system did not sufficiently protect citizens’ fundamental right to adjudicative remedy for alleged violations of their rights 13 Chad Vickery (Ed.), Guidelines for Understanding, Adjudicating and Resolving Disputes in Elections (GUARDE), 2001, Chapter 1. 14 Trust in the fact that decisions will be respected and enforced is also important, but usually involves other institutions – including law enforcement – and as such is outside the scope of this paper. 15 Chad Vickery (Ed.), GUIDELINES FOR UNDERSTANDING, ADJUDICATING AND RESOLVING DISPUTES IN ELECTIONS (GUARDE), 2001, CHAPTER 1. 11 9