The rules should provide clear grounds upon which complaints and appeals are allowable.
- "[States should] strengthen supervision by ensuring an effective, transparent and accessible complaints and appeals system in order to put an end to the culture of impunity for election-related offences and enhance public confidence in the electoral process."
- All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections.
- All voters must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters against the results of a referendum.
- Both the preliminary and the final results should be subject to challenges. Therefore the electoral law should differentiate between the procedures, deadlines and time-limits applicable to each phase.
- Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.
- 40. The electoral law should lay down the grounds upon which complaints and appeals are admissible. Any complainant should be duly notified in writing of the decision as to whether his/her petition was considered admissible or not, with reasons given. 41. Grounds for appeal should be strictly defined in the law, preferably for each phase involving an election dispute mechanism, so that courts and electoral bodies are not burdened with irrelevant or frivolous challenges. 42. The parties authorized to bring election-related complaints or appeals before a court or an electoral body should be strictly identified by the electoral law. 43. Time-limits and procedures governing the admissibility of complaints and appeals should be designed so as to preserve the right of aggrieved parties to seek redress.
- If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
- Additionally, the law must be clear as to what circumstances require a recount or new election in any or all polling stations. The law must be clear as to who can request a recount or new election, the deadline for the request, all necessary procedures to make the request, the deadline for adjudicating the request, and the date and procedures that will govern a recount or new election.
- The electoral law should clearly state the grounds upon which the election results may be partially or fully invalidated. A mere reference to the constitution should not be held as providing a sufficient basis for adjudicating such cases. Also, the law should specify the amount and type of evidence required for a review of the results. In the absence of clear and unambiguous standards of evidence, the determination of what evidence would satisfy these standards could vary on a scale that may undermine the whole process.
- The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body.
- Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
- The appeal body in referendum matters should be either an electoral commission or a court. In any case, final appeal to a court must be possible.
- The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.
- The right to appeal to election bodies and courts should be established to enable a clear, understandable, singular and hierarchical complaint process that defines the roles of each level of election commission and each level of the courts. This will avoid the potential for a complainant to appeal to the body considered likely to offer the most favourable consideration of the complaint.
- It should be emphasized that, as discussed above, legitimate complaints that are incomplete or do not meet other requirements should not necessarily be dismissed on procedural grounds. Issues of due process should be balanced in the decision to dismiss a case.
- In this context, efficacy means that the formal requirements to lodge an appeal are minimal and do not constitute an obstacle to access justice, nor impede the resolution of the legal dispute in any way.
- An optimal design for an EDR system demands clarity and simplicity. The constitutional, statutory and regulatory provisions for challenges that guarantee compliance with the electoral legal framework and the defence of electoral rights must be drafted in simple and clear language in order to meet the requirements of access to justice and legal certainty. Their content must be broadly disseminated in the language of the community where the election is to be held to ensure that they are transparent and easily understood by all interested persons and consistently followed – especially by the EDRBs.
- Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions.
- It is also important to minimize the formalities required for a challenge to be deemed to have been properly filed.