A Procedure for challenging results is desirable at every stage of the vote tabulation process. This helps to ensure that the election process is transparent, that election authorities are accountable, answerable and that the election outcome is acceptable to all parties.
May 19, 2020
The election has also been defined to mean the process of choosing a person or persons for an office, position or membership. In the Representation of the People Act of 1951, the word election is defined as election means an election to fill a seat or seats in either Houses of Parliament. The word election used within the Representation of the People Act includes every stage from the time notification calling for election is issued to the declaration of the election result.
The Representation of People’s Act 1951 is a complete and self-contained code within which it must be found any right claimed concerning an election dispute. Part VI of the Act deals with disputes regarding elections and provides for the manner of presentation of election petitions their trial and procedure thereof. Section 80 of the Representation of the People’s Act says that No election shall be called in question except by an election petition presented under the provisions this part.
A Procedure for challenging results is desirable at every stage of the vote tabulation process. This helps to ensure that the election process is transparent, that election authorities are accountable, answerable and that the election outcome is acceptable to all parties. Aggrieved parties and candidates should be able to challenge results based on factual information and are entitled to an independent and fair hearing of their case.
Effective mechanisms for challenging results of an election add to the credibility of an election outcome. If a party to an election is not satisfied that an election has been appropriately conducted the ability to effectively challenge the election result will ensure that any genuine errors are corrected. If any fraudulent activities are identified, they were dealt on time. Election results can generally be challenged in many ways and at several points in the process. A complaint often needs to be filed within a specific period, and it should meet certain criteria.
At the first stage of the counting process for paper ballots when ballot boxes are opened, and they are counted for the first time party and candidate representatives are often given the right to challenge whether a ballot paper is genuine or whether a ballot paper is valid or invalid or whether it has been correctly sorted to a candidate or party.
The counting officer in charge will have the authority to rule on disputed ballot papers, or ballot papers can be set aside so that a more senior electoral official can rule on them at a later time. Similarly, if ballot papers are recounted at a regional or central counting centre, party and candidate representatives may again challenge decisions taken during the counting of ballot papers. At this stage, it is usually possible to change a decision on a disputed ballot paper that was made at an earlier count.
Where mechanical or electronic voting methods are used, political parties and candidates and observers should have the right to inspect audit trails and any source documents used, and they have the opportunity to challenge any alleged irregularities. In many cases, challenges may be made verbally, and in some cases, it may be desirable to have a written process.
Where ballot papers are set aside for the decision of a more senior officer at a later time these ballot papers should be bundled separately so that they can be identified at a later time. Also, these bundles of disputed ballot papers may be kept separate so that a court or tribunal can rule on them if found necessary.
Representatives of candidates or parties are often given the right to challenge the counting process. In some cases registered voters, local or international observers may also be given this right to challenge.
As recounts can be time-consuming and expensive, the responsible electoral official may be given the discretion to decide whether to grant or not to grant a recount. Generally, recounts are only conducted if there is a small difference between the winning and losing party or candidate and if there is some doubt as to the accuracy of the count.
If the initial result is a tie, it is wise as a general rule to automatically conduct a recount to determine whether any mistakes were made that if corrected, could break the tie position. The most important consideration is to ensure that all parties are satisfied with the outcome of elections. If failure to conduct a recount will lead to one or more parties not accepting the results of elections, a recount could be recommended.
A recount can either be a full or partial recount. Thorough records of any recounts conducted should be kept safe. It is necessary to satisfy all parties that proper procedure has been followed and may be needed if the election result is challenged at a later stage.
There should be a time limit on applying for a recount of votes. In most cases, recounts will only be permitted within a short time after the completion of counting like there may be a 24-hour or 48-hour limit or only before the official declaration of the final election result. After that time recourse may only be permitted in a court or tribunal.
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After any administrative recounts are resolved, and the electoral authority has officially declared the results of the election there may be further opportunity to challenge the election result by appeal to a court or a special election appeal tribunal. Some jurisdictions establish special electoral tribunals or courts specifically during the period of elections. A challenge to a court or election appeal tribunal is generally made in a formal legal petition. Challenges may be made by candidates, parties or persons eligible to vote in the election or by the electoral administration.
There will generally be a time limit on challenging results of the election before a court or tribunal. This limit is usually longer as the legal nature of court or tribunal proceedings requires more significant preparation. In addition, the court or tribunal may be required to hand down its decision within a specified time.
At this stage, any aspect of the election may be questioned, including -
• The accuracy of the voter’s list,
• Whether voters were intimidated, bribed, or prevented from voting,
• Whether electoral officers acted in a biased, partisan way,
• Whether candidates or parties misbehaved,
• Whether candidates were eligible to be elected,
• Whether votes were fraudulently cast,
• Whether there were any errors or irregularities in the vote-counting process
• Whether any technology used in the electoral process and more narrowly, the results management system malfunctioned or was compromised in some way.
Courts or tribunals considering disputed elections may have the power given to them by legislation to examine ballot papers and other election documents or order audits and recounts of ballot papers. They are usually given the power to decide and to confirm the original election result or to overturn the election result and declare a different election result. They may also have the power to order that another election must be conducted. To maintain the integrity of the electoral process, it is necessary to interpret electoral laws consistently.
Section 100 of the Representation of People’s Act deals with the grounds on which an election may be challenged through an election petition. Section 100 reads as follows-
1. Subject to the provisions of sub-section (2), if the High Court is of opinion –
a. That on the date of his election a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963(20 of 1963): or
b. That any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent: or
c. That any nomination paper has been improperly rejected: or
d. That the result of the election, in so far as it concerns a returned candidate, has been materially affected-
i. By the improper acceptance of the nomination, or
ii. By any corrupt practice committed in the interests of the returned candidate by any agent other than his election agent, or
iii. By the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
iv. By any non-compliance with provisions of the Constitution or this Act or any rules or orders made under this Act,
The High Court shall declare the election of the returned candidate to be void.
2. If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied –
a. That no such corrupt practice was committed at the election by the candidate or his election agent, and every such unethical practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
b. That the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
c. That in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide the election of the returned candidate is not void.
Thus section 100 of the RPA,1951 provides two kinds of grounds to the petitioner: first -the grounds in clauses (a) to (c) are grounds of the election petition as such while Second – the grounds in clause (d) are available to a candidate only if the candidate as far as a result is concerned has been ‘materially affected.’ What shall amount to being materially affected has not been specified in the Act.