When Are Elections Good Enough?
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; and repeat elections may themselves be subject to irregularities. 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 thwart the will of voters.
This raises important questions: When are elections considered good enough? And what is needed to make a determination whether to validate or annul an election?
The answer to these questions is not straightforward, and different jurisdictions have taken different approaches. In some contexts, there may be a readily quantifiable number of votes affected by one or more irregularities. In other cases, however, such as voter intimidation, cyberattacks, or electoral disinformation, determining the impact of an irregularity on an election will be difficult or impossible.
With that difficulty in mind, it is critically important for jurisdictions to have clear and pre-determined rules governing when annulment is available as a remedy, both to ensure that annulment is available if needed, but also so that annulment is not misused to frustrate the will of the voters.
A new 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.