Annulling Election Results: How Many Irregularities Are Too Many?

The high-profile annulment of the 2017 Kenyan presidential election surprised many election watchers in Africa and across the globe. All elections suffer from challenges and irregularities, to varying degrees of seriousness, including poll worker error, acts of God, and violence, without these challenges necessarily changing the outcome of the vote or leading to a full annulment.

A decision to annul elections is one that should not be taken lightly as it can have serious consequences for democracy. Repeat elections impose unexpected costs on state budgets and candidates; the normal operation of legislatures and governments may be disrupted while a revote is organized; candidates may refuse to participate in the fresh elections, leading to a political crisis; repeat elections may themselves be subject to irregularities; or fewer voters may turn out on the new Election Day. Most concerning, however, is the potential for bad actors to use annulment of results (under the guise of ensuring “secure elections” or as redress for “widespread irregularities”) as a tool to disenfranchise voters.

This raises an important question, which has not been closely examined: under what circumstances is it appropriate to annul election results? And what evidence should be required before an annulment is ordered?

The answer to this question is not straightforward. In some contexts, there may be a readily quantifiable number of votes affected by a particular irregularity, and most countries have laws outlining whether or not to annul results in these cases. However, threats of violence, interference by the institution organizing the election, vulnerabilities in the voter registration or candidate nomination process, cyberattacks, or disinformation shape elections and the choices made by voters that may be challenging to quantify. These tactics may lead to decreased voter turnout, disenfranchisement, and altered voter impressions.

In these instances, if an election annulment is sought, there must be predetermined methods in place to determine if annulment of the result in appropriate. Clearly defined structures and processes are essential to ensuring annulments are not misused.

A forthcoming International Foundation for Electoral Systems research paper outlines various legal approaches to election annulments, explores different grounds for annulment, and outlines procedural considerations for courts and adjudicators when determining whether to annul an election result, drawing on international principles and global jurisprudence.