considered: how does one determine the extent of the fraud? How does one correct the impact
of the fraud once it is properly identified? Does the remedy disproportionally impact one
candidate over another? How can one be sure that the remedy has captured the will of voters?
And, how does one identify and prosecute the perpetrators to deter future fraudulent acts?
These questions, and how one strives to answer them, begin with the question of what is being
remedied – acts of fraud, negligence or systemic manipulation.
IV.
Who is the remedy for?
The effectiveness of a remedy depends in part on the parties that it affects. Whose
rights have been violated? Who can bring a complaint or appeal against the violation? Is there
broader public interest in a particular remedy? Is it within the court’s ability to redress the kind
of harm at issue? Who is harmed when election laws are written to benefit one group over
another or not followed?
One of the most important procedural tools used by adjudicators to determine who can
seek relief from adjudication process is standing. Election irregularities include a wide range of
issues like incorrect voter registration, candidate eligibility, ballot recounts, or fraud, all of which
may involve (or impact) different actors, including election officials, candidates, political parties,
voters, or other individuals. In principle, all actors who assert knowledge of an electoral
irregularity should have legal standing to bring complaints, regardless of injury.30 However, a
broad legal standing can lead to burdensome caseloads and increase the number of frivolous
claims, which can undermine the efficiency of EDR systems. Thus, a more restrictive approach to
standing may be preferred for practical reasons.31 Generally, electoral laws state that claims
should be limited to individuals who are directly impacted by a violation.32
Standing rules that require a direct correlation to injury or impact may ease the
identification and application of an effective remedy. In the United States, standing is limited to
only those who have suffered or will suffer an injury in fact, whose injury was or will be caused by
the actions or inactions of the defendant, and whose injury can be reasonably redressed by the
court. The U.S. Supreme Court has further narrowed standing doctrine in cases like Federal
Election Commission v. Akins, which created the “zone of interest” test.33 This test limits statutory
standing to only those intended by the legislature to be protected by the law at issue.34
Although the standing requirement in the United States is relatively narrow, adjudicators
deciding election cases have approached this requirement liberally when it comes to determining
the legal concept of “injury in fact.” In Akins, the plaintiffs were a group of registered voters who
had asked the defendant, the FEC, to determine that an organization called the American Israel
30
GUIDELINES FOR UNDERSTANDING, supra note 7, at 21.
A case can be made that exceptions to ordinary rules on standing are justified with regard to certain types of
grievances. See CARTER CENTER, ELECTORAL RESOLUTION EXPERTS’ MEETING 2, 10 (2009),
31
http://www.cartercenter.org/resources/pdfs/peace/democracy/des/electoral-dispute-resolutionmeeting.pdf.
32
Avery Davis-Roberts, International Obligations for Electoral Dispute Resolution 10-11 (Carter Center, Discussion Paper
for Experts’ Meeting, Feb. 24-25, 2009), http://www.cartercenter.org/resources/pdfs/peace/democracy/des/edrapproach-paper.pdf
33 Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998).
34 Id.