ELECTION WATCHDOGS
5/30/17 11:29 AM
large scale. In the latter situation, the audit may itself be considered a form of appeal (and potentially
also a form of remedy, for example if it results in a confirmation of results). In either case, however,
the appeals process should support the fundamental right to judicial review (that is, review of an administrative decision by an independent judicial body), have a clear basis in the law, and be generally
known to the public. This last principle is particularly important when an audit changes the outcome
of elections because the public must understand why the election result was challenged and accept the
remedy that was administered.
The audit review process should be fast and effective, but it also should not contravene due process
protections. Appeals should not be used to delay the certification of the results or to harass the opposing party or candidate. Time limits for lodging and deciding appeals should be reasonably short.
The European Commission for Democracy through Law (generally known and referred hereafter as
the Venice Commission)8 has set the standard of three to five days for actions at first instance (that is,
for decisions by the arbiter who is mandated to hear the case first).
Finally, as previously stated, a transparent right of redress requires that the appellant be informed of
the reasons why an appeal was dismissed or denied. Thus, the appellate body should clearly state the
legal basis used and factual determination made when it ruled on the particular case. The judge or
arbiter should detail which audit findings were considered or relied on in making their decisions, what
violation was committed and by whom, and whether the violation influenced or might have influenced
the outcome of the elections. The appellate body should also provide the concurring or dissenting
opinions of the judges or arbiters. This will provide transparency about the reasoning used by arbiters
to reach their conclusion and any personal legal views that entered into the decision. A legal justification for a decision will also facilitate the enforcement of the decision and help to establish the legitimacy of the final electoral results.
Mandate for Audit Oversight/Observation
There is a strong basis for external monitoring of electoral processes in international law and best
practice. The Declaration of Principles for International Election Observation recognizes that “Achieving genuine democratic election...has become a matter of concern for international organizations, just
as it is the concern of national institutions, political competitors, citizens and their civic organizations”
and affirms that “International election observation has become widely accepted around the world
and plays an important role in providing accurate and impartial assessments about the nature of electoral processes” (The United Nations 2005). The Inter-Parliamentary Union (IPU) Declaration on Criteria for Free and Fair Elections also provides that “states should take all necessary and appropriate
measures to ensure the transparency of the entire electoral process including, for example, through
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