LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS This paper presents an analysis of select court judgments from IFES’ database, ElectionJudgments.org, involving the use of election technology, and compares additional procedural issues raised by electoral judges globally, including evidentiary rules, effective investigation, protection of integrity of data, and the application of timely and effective remedies. Three key points emerge from the jurisprudence: First, the court judgments examined in this analysis raise procedural specific challenges for judges in light of the seven standards for election dispute resolution identified by IFES in our 2011 Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections. This includes the right to an effective remedy, the right to a fair trial, and the importance of a prompt, independent, effective and thorough investigation. 5 Our analysis shows that electoral judges may need to adapt their methods of fact-finding and analysis of election technology 6 in relation to access to and admissibility of evidence, and to clearly determine the roles and responsibilities of those conducting investigations and audits. Second, this analysis reveals the importance of election officials ensuring a verifiable election process that can be corroborated by an audit to allow judges to quicky assess alleged irregularities or fraud. The need for verifiability of an electronic vote is a recommendation of the Venice Commission’s Code of Good Practice on Electoral Matters and the Council of Europe’s Recommendation on Standards for E-Voting. 7 Mircea Preotescu, Head of the Coordination Department of the Permanent Electoral Authority of Romania has observed that “[w]e must use technology, but it does not have to be the baseline. We also need to be able to conduct an audit. The paper trail is one of the most important aspects in elections, and that paper trail should be audited so that we can prove the accuracy of the results when technology fails us.” 8 In IFES’ Guide on Risk Limiting Audits, the authors reference the Indian Supreme Court ruling that all voting machines must be equipped with printers to provide “voter verifiable paper audit trails” (VVPAT) to “allow each voter to verify that his or her intended selections are correctly printed.” 9 Third, this analysis suggests that it is essential for EMBs to familiarize judges and stakeholders with the type of technology that will be used in the election process and discuss access to evidence well in advance of elections. It is indeed crucial for judges to be informed in order to assess the verifiability, accuracy, and authenticity of a particular technology or the underlying information used in the technology (e.g., voter information on voter rolls, compared to votes cast) and its larger impact on the election process. Standards against which to situate the use of technology within existing election laws are underdeveloped and require further attention. Collaboration between EMBs and courts prior to the election can assist with this – bearing in mind the need to preserve the independence of both institutions. The joint trainings held between the judiciary in Kenya and the IEBC on the use of technology Chad Vickery ed., Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE), IFES, 2011, which sets out seven international standards applicable to electoral complaints and appeals processes. These legal standards stem from widely recognized fundamental rights, such as the right to participate in government; the right to a fair and public hearing; the right to an effective remedy and access to justice. 6 United Nations, on behalf of the Office of the United Nations High Commissioner for Human Rights (OHCHR), and the Human Rights Center at the University of California, Berkeley, School of Law, Berkeley Protocol on Digital Open Source Investigations, 2020. Foreword. 7 The Venice Commission Code of Good Practice on Electoral Matters 2002, paragraph 3.2 iv recommends “electronic voting should be used only if it is safe and reliable; in particular, voters should be able to obtain a confirmation of their votes and to correct them, if necessary, respecting secret suffrage; the system must be transparent”; the Council of Europe’s Recommendation on Standards for EVoting CM/Rec (2017)5 says at paragraph 15 that electronic voting must be verifiable, and the Guidelines on Implementation at paragraph 15 explain that member states should consider the use of paper ballots for verification purposes. 8 Intervention made during the third meeting of the Europe and Eurasia Regional Electoral Justice Network in May 2021. 9 Mohanty, V., Akinyokun, N., Conway, A., Culnane, C., Stark, P. B. & Teague, V. (2019). Auditing Indian Elections. p. 2. Retrieved from: https://arxiv.org/pdf/1901.03108.pdf. See IFES Risk Limiting Audit: A Guide. (2021). 5 8