Electoral Adequacy: A Minimalist Approach to Judging the Legitimacy of an Election
By Larry Garber
Larry Garber writes that even with “exhaustive” electoral guidelines, “providing a conclusive assessment as to whether the results of an election should be accepted or rejected is more art than science.”
Larry Garber is an adjunct professor at Arizona State University Law School and on the Board of Election Reformers Network.
“Electoral adequacy” represents a new entry in the lexicon of terms that political analysts and international and domestic observers use in their assessment of elections. While some may see the term as lowering the bar for evaluating elections, the term may well reflect the actual standard used by those responsible for resolving election disputes.
Previously used and more familiar terms include “periodic and genuine,” “free and fair, and “electoral integrity.” More descriptive variations include “an outcome that reflects the will of the people,” and “a process that is consistent with international standards.” A good example of nuanced language was used by an international observer team in Zimbabwe in 2018:
[we note] several improvements to the electoral process compared to Zimbabwe’s past elections, though equally important shortcomings give rise to deep concerns that the process did not meet the mark.
The search for short-hand terminology reflects the different purposes for which an assessment of an electoral process is being made. On the one hand, academics and observers seek to identify strengths and weaknesses in an electoral process, suggest reforms, and provide a basis for a comparative ranking of a country’s compliance with international standards and assumed best practices. On the other hand, courts responsible for resolving concrete election disputes must determine the electoral winner or order a rerun of the election; there is no intermediate zone.
In their search for more objective indicators, many organizations have prepared handbooks with extensive lists of the different components of the electoral process that deserve assessment. The Carter Center references 10 core parts of the electoral process; the National Democratic Institute identifies 16 common elements of legal frameworks for elections that merit evaluation; International Foundation for Electoral Systems mentions 11 topics that are covered in an election integrity assessment; the Election Integrity Project includes 49 items about electoral integrity that fall into eleven sequential dimensions; and the USAID Electoral Assessment Framework highlights 13 components of an electoral process that warrant assessment.
Even with such exhaustive lists as guides, providing a conclusive assessment as to whether the results of an election should be accepted or rejected is more art than science. As Professor Edward Foley has written, “A flawed election is not ideal, but its results still should be accepted, unlike in a failed election, which does not represent the choice of the voters.
Hence, international observers encourage electoral contestants to direct their complaints to the domestic institution that is constitutionally mandated to resolve election disputes, often the Supreme or Constitutional Court operating in the jurisdiction. In most instances, the two issues examined are: a) whether a segment of the population has been unlawfully denied its voting rights and the opportunity to participate in the process in sufficient numbers to have affected the results? and b) whether the results reported accurately reflect the actual ballots cast?
The first question requires an analysis of de jure and de facto efforts to suppress the rights of eligible voters to cast their ballots, and their estimated consequence in the actual conduct of the election. Deliberate actions to prevent voters in certain areas known to favor a particular party might warrant a rerun of the election, assuming the prospective voters affected are greater than the margin of victory. A more difficult case involves a natural disaster on or close to election day that makes difficult voting by those most severely impacted in specific regions. In such circumstances, the courts must decide whether a partial or complete rerun is required, or whether the natural disaster should be viewed as just one of many events that inhibit voter participation.
The second question relating to the actual counting of ballots is where the most contentious challenges occur. The easiest cases involve mathematical errors, which can be readily established and quickly remedied through administrative or judicial action. More difficult cases involve questions surrounding challenges to the validity of certain ballots and the counting of ballots with unclear markings, where the number of challenged ballots may affect the outcome of the election. Finally, there are the claims that the entire process has been corrupted, for example, through hacking of technology used to count or tabulate ballots. In all these instances, but particularly the latter, the courts often rely on a presumption of regularity, which imposes a heavy evidentiary burden of proof on the party challenging the announced outcome.
Reliance on the decision of the constitutionally mandated institution, however, does not definitively resolve matters for serious international observers. Even as they urge disappointed candidates and parties to use available domestic remedies, they realize that the judicial deck may be stacked against the challengers. Thus, in providing their assessment, election observers often consider the nature of the judicial appointment process and the extent to which those serving have demonstrated their independence as a decision-maker. Obviously, these situations require quite subjective judgments by the observers, but their pronouncements often influence how the election is perceived by both domestic and international actors, causing everything from reluctant acceptance of the results to violent rejection, and from improvements in diplomatic relations to increased sanctions.
Elections in several African countries have highlighted the role that courts play in resolving election disputes and the standards that they use. In Kenya 2017 and Malawi 2019, the respective high courts decided that flaws in the process merited reruns of the elections. The Zimbabwe court in 2018 rejected the opposition claim that the outcome had been manipulated, despite evidence that the legally mandated procedures for transmitting the tally sheets had not been followed. And in August 2022, the Kenya Supreme Court rejected the opposition claim that the vote count was manipulated, notwithstanding the fact that a majority of the body responsible for administering the elections declined to endorse the results announced by the body’s chairperson.
Even the low bar suggested by the term “electoral adequacy” will result in the outcome of elections being called into question so long as trust in the responsible institutions is declining. Restoring confidence in these institutions requires a serious examination of how legislative, judicial, and election administration bodies are selected. This reality is as true in the United States as in countries that are more often the subject of critical international observation.
Election reformers in the United States are offering innovative solutions to address the trust deficit. At the legislative level, advocates are promoting alternatives to the traditional first-past-the-post system; rank choice voting and non-partisan primaries are among the reforms that have already been adopted in different states. The partisan election of judges in many states is also a practice that is very much on the agenda of reformers.
Finally, as is evident from the 2022 election cycle, the selection of the chief election official is now the subject of heightened interest. In 29 states, elections are administered by the secretary of state (24 of whom are elected on a party ticket, and 5 appointed by the governor). However, in an era of election denialism, this once under-the-radar position is now the subject of hotly contested races across the country. Hence, the Election Reformers Network, among others, is advocating that the chief election officer position should be designated as independent and non-partisan, as is done in most other democratic countries. Recognizing that this may be too big a short-term lift, reformers are also promoting model legislation that would reduce potential conflicts of interests and establish professional qualification requirements for senior election officials.
Elections are an essential component of a democracy, but they work only when there is trust by the vast majority of the population in the integrity of the process. Independent election and judicial bodies, and international and domestic observers, contribute to building this confidence, but the trust can easily be shattered amidst efforts to disparage the process. Thus, those who care about the future of US democracy must be prepared to critically examine existing laws and practices, and to take the necessary steps to bolster those institutions that are now much under attack.