When Are Elections Good Enough? Validating or Annulling Election Results various commonwealth countries that follow the U.K.’s approach to election challenges require that challenges based on allegations of illegal conduct by the winning candidate must be proven to the highest standard. Nigeria applies the reasonable doubt standard even in civil actions if the civil suit would turn on the question of criminal guilt.82 But some jurists and justices in Nigeria have warned that the “percentage of otherwise meritorious election cases which have been thrown out by our election courts and tribunals, on the basis . . . that the petitioners failed to prove the allegations beyond a reasonable [doubt] is very frightening.”83 In other words, the reasonable doubt standard may be too strict to apply in typical election annulment cases, as opposed to criminal prosecutions for electoral offenses. The third standard, clear and convincing evidence, represents a middle point between the other standards. It means that the proponent of the evidence must show that it is substantially more likely than not that the asserted claim is true.84 What “substantially” means is not well-defined, but it is universally accepted to be more rigorous than preponderance of the evidence and less rigorous than proof beyond a reasonable doubt. It can be useful to think of this as requiring 75 percent certainty. In American jurisprudence, the clear and convincing standard originated as the standard of evidence in civil cases alleging fraud or quasi-criminal conduct by the defendant, and has since been extended to cases involving fundamental human rights and many kinds of situations where losing would cause the defendant to suffer irreparable non-monetary harm.85 For example, the clear and convincing evidence standard has been applied in U.S. election cases involving restrictions on campaign advertising and campaign finance because the actions of the regulatory bodies implicate prior restraints on free speech rights.86 In Thailand, the Organic Act for the election of members of the Parliament and of the Senate states that the Election Commission will look at convincing evidence to determine if, for example, there has been a violation of the rules on electoral expenditure and means of election campaigns, or, if any candidate has committed a dishonest and unfair act in the conduct of the elections.87 Similarly worded standards have been adopted in many international cases involving human rights.88 In Raila Amolo Odinga & Another v. 82 See, e.g., Evidence Act (1990), Cap. (112), § 138(1) (Nigeria) (“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond a reasonable doubt.”), http://www.nigeria-law.org/EvIdenceAct.htm#ProductionAndEffectOfEvIdence. 83 Mimiko’s Case and the Issues of Burden and Standard of Proof in Election Petitions, Compass Nigeria, February 17, 2010. 84 See, e.g., Grogan v. Garner, 498 U.S. 279 (1991). The modern definition of clear and convincing evidence evolved in the U.S. legal system, but has since been adopted in international contexts as well. 85 Brandt Distrib. Co. v. Fed. Ins. Co., 247 F.3d 822 (8th Cir. 2001); Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. 1996). 86 Fulani v. Fed. Elections Comm’n, 147 F.3d 924 (D.C. Cir. 1998); Briggs v. Ohio Elections Comm’n, 61 F.3d 487 (6th Cir. 1995); Pestrak v. Ohio Elections Comm’n, 926 F.2d 573 (6th Cir. 1991). 87 Organic Act on the Election of Members of the House of Representatives and the Installation of Senators, arts. 57, 103, 107 (2007) (Thailand) (“In the case where during a period of time under Section 49 there is convincing evidence that any person gave, offered to give or promised to give money or properties for the benefit of inducing a voter to vote for any candidate or political party…”). 88 Terminology largely synonymous with clear and convincing evidence used by various international courts includes references to the need for evidence that is “clear and cogent” or “cogent and compelling,” as well as stipulations that tribunals needed to be “convinced.” See, e.g., HCJ 6659/06 Anonymous v. The State of Israel [2008] (Isr.) (applying “clear and convincing” standard); HCJ 11225/03 Bishara v. Att’y Gen. [2006] (Isr.) (requiring 21