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Working Group on Accountability of Election Management Bodies for Voting Integrity


"How can an EMB and its workforce minimize errors in election administration?"


A report on the deliberations of a Working Group representing seven Commonwealth Country Election Management Bodies, which met at Canada House in London, UK, on July 30 and 31, 2015.

This meeting focused on defining, exploring and providing answers to the question posed above.

Introduction

Election Management Bodies (EMBs) around the world face a periodic challenge: to recruit, train and manage a very large temporary workforce to deliver a time-compressed, highly-decentralized electoral process countrywide.

For countries represented on the Working Group,Footnote 1 the size of this short term workforce varies from 15,000 to more than 715,000 employees, most of whom work only a single day national election day.

We can safely say that expecting any new employee to make absolutely no errors during their first day on a job is irrational. For electoral workers expected to master actions related to highly complex, legally prescribed rules, perfection is an even more challenging aspiration.

Yet during a close-fought election, errors in voting administration may lead to legal disputes and intense scrutiny of any procedural non-compliance by election officials, and can potentially result in a court-ordered requirement to re-stage a very expensive electoral contest.

Such failures will not only damage an EMB's reputation, but more importantly can erode the public's trust in its national institutions of democracy and leave lingering questions about the legitimacy of election results.

Increasingly complex electoral procedures, coupled with seemingly permanent election campaigns that feature hyper-partisanship and tight electoral races between candidates and political parties, demand that EMBs recognise a need to manage the risks of administrative errors and take proactive measures to address and reduce them.

Context

Australia, Canada and the United Kingdom have all experienced serious problems with election administration errors in recent years. When election workers did not consistently apply voting and ballot counting procedures, it has led to legal challenges and public controversy over non-compliance with statutorily-required electoral processes.

After Australia's 2013 general elections, a recount of the Western Australia Senate votes to confirm close results exposed that 231 paper ballots from the Division of Forrest and 1,139 paper ballots from the Division of Pearce were unaccounted for. This loss of ballot papers led Australia's High Court, acting as the Court of Disputed Returns, to declare the election of six senators as void. It ordered fresh elections.

A subsequent inquiry, conducted by a standing committee of Parliament for electoral matters, concluded that the national EMB's own processes created an environment where misplaced ballots became likely. The inquiry pointed out shortcomings in training, ballot paper security, packaging and transportation, and suggested that the EMB's organizational culture fostered non-compliance with legally-required procedures.Footnote 2

Following Canada's 2011 national election, close ballot results in the electoral district of Etobicoke Centre were legally disputed. Court proceedings revealed that election officials at district voting sites had made a large number of procedural errors. Because errors in administering voting eligibility safeguards in the Etobicoke Centre district clearly exceeded the vote plurality of the winning candidate, the provincial superior court ruled the election to be null and void.

In a split 4/3 decision, the Supreme Court of Canada later reversed the lower court's decision. The case clearly highlighted the issue of non-compliance among temporary staff administering voting processes and pointed out their serious legal implications.

While the court challenges were underway, Canada's national EMB commissioned an in-depth review to examine compliance of voting records among a random sample of 1,000 polling stations that had operated during the 2011 election. The review confirmed that the errors that had occurred in Etobicoke Centre were not isolated or unique to that electoral district. Subsequent legislation required the national EMB to fund the cost of an independent compliance audit for each general election and by-election going forward.

During the UK national elections of 2010, queues of unserved voters remained at 27 polling stations across 16 constituencies after the polls had officially closed. Some voters, despite having turned out in advance of the close of a polling station, were prevented from casting a ballot. It was later estimated that about 4,100 electors did not vote because the law stated that ballots could not be issued after 10:00 p.m.

Yet there was inconsistency in actual practice. Elsewhere voting officials had kept polls open after 10:00 p.m. to allow all queued voters to cast their ballots. This did not technically comply with UK election law, but it was widely seen as being appropriate and in keeping with democratic values. The election officials' uneven practices led to significant public controversy, with the national EMB being blamed for disenfranchising voters. UK legislators changed electoral law in 2013 to permit persons to vote if they were "in the polling station, or in a queue outside the polling station" at the time set for close of polls.

Other Working Group members reported that their countries had been lucky so far to avoid such storms. Most expected that non-compliance issues could spawn similar legal challenges or public controversy in their own future elections.

Setting terms: Non-compliance vs. malpractice

The Working Group found the terms "compliance" and "non-compliance" to be more accurate and useful than "malpractice."

Although a number of academics and international democracy support organizations have referenced administrative errors by election personnel as forms of malpractice, the term carries negative undertones that imply intentional failure aimed at manipulating the election outcome. Almost without exception, neither intent nor fraud exists when temporary election workers fail to perform their duties in the legally prescribed way.

In the electoral context, non-compliance should be defined as:

"The breach by an election official of his or her relevant duty without deliberate intent."

Alternatively, compliance in election administration can be defined as:

"The act or process of an election official complying with prescribed procedures; conformity in fulfilling official requirements."

Clearly, no EMB can realistically expect 100% of its temporary election officials to conform and comply with every procedural rule and specified process. Errors will always occur. However, efforts must be made to distinguish between intentional errors (those related to election fraud); material errors (those related to the right to vote, ballot security and the count); and those that are non-material or merely clerical.

Working Group members observed that almost all temporary election officials truly do want to get it right. None wishes to make mistakes, especially through material errors that they are trained to recognize and cautioned to take extreme care to avoid.

Electoral integrity, EMB accountability and public perceptions

Discussion among Working Group members underscored the fact that the concept of electoral integrity has a range of meanings. Many of these fall far outside the control of senior election administrators and their large temporary workforces.

Standard dictionary definitions of integrity suggest two distinct meanings:

"Adherence to moral and ethical principles; soundness of moral character;" and;

"A sound, unimpaired, or perfect condition; the condition of being unified or sound in construction." Footnote 3

The Global Commission on Elections, Democracy and Security states:

"We define an election with integrity as any election that is based on the democratic principles of universal suffrage and political equality as reflected in international standards and agreements, and is professional, impartial, and transparent in its preparation and administration throughout the electoral cycle"Footnote 4

One advocacy organization further suggests that voting integrity requires:

" ... in practice: fair, reliable, secure, accessible, transparent, accurate, accountable, and auditable public elections ... (that) preserve the secret ballot, accuracy, privacy, integrity, and the proper tabulation of the voter's intent regardless of his or her physical condition, language of origin, or literacy ability"Footnote 5

Working Group members agreed that elections and voting processes can still hold integrity even if they are not completely devoid of administrative errors. However, contentious issues related to the administrative conduct of an election can quickly result in real, lasting harm to an EMB's image and reputation.

It was agreed that the general public expects an overall voting process to occur with very few errors. Different stakeholder groups, though, fix on differing targets for acceptable rates of election error. Parliamentarians, political parties, partisan scrutineers, media representatives and legal authorities will each tend to have different understandings about, and tolerances for, various types of administrative errors. Depending on the closeness of election results, and the potential impact particular types of election errors may have had, these tolerance levels can quickly change.

For an EMB, a particularly important measure of the acceptability of election errors lies with the opinion of the courts.

In election challenges, courts have generally focused on the impacts of administrative errors on the results. Interestingly, the courts have not tended to blame poll workers for errors in voting processes (e.g. they acted in good faith). They recognise the difficulty of accurately administering a broad range of complex processes during a one-day event.

A court's first measure of an election administration error almost always involves assessing whether it affected franchise rights. Among these are whether ineligible persons were consistently prevented from voting; eligible persons were prevented from voting more than once; ballot controls existed to prevent ballots that did not originate from eligible voters from entering ballot boxes; and whether all accepted ballots were counted properly. The second measure is usually tied to whether evidence of such material errors exists in numbers great enough to have affected an election's outcome.

Working Group members identified a broad range of factors and issues that could result in non-compliance and produce material errors of types that courts might consider to have affected election results, and that in turn could cause public doubt regarding the overall integrity of an election:

Working Group members unanimously agreed that it is the body or person with statutory responsibility for recruitment and training (usually, but not always, the EMB) that is ultimately accountable to the public for any errors their temporary workforce makes during an election.

Indeed, most EMBs around the globe are considered answerable for errors by the temporary election officials they recruit and train. Factors that are clearly beyond their direct control can significantly affect the error rate within particular election processes and negatively affect public perceptions of an election's administration.

Every EMB has a responsibility to minimize rates of election administration error and, to the maximum extent possible, ensure that material errors do not occur. Understanding the entire scope of this challenge may require an EMB to hire external or independent auditors to assess its current business operations.

What are the guiding principles for minimizing errors?

The Working Group agreed on a range of guiding principles that an EMB might bear in mind when developing strategies, tactics and approaches to minimize administrative error:

How these key concepts are weighted and applied in a particular jurisdiction obviously depends on each EMB's operational and cultural context.

Improving recruitment

Most EMBs have a small team of permanent head office personnel to plan and organize general elections. As an election date looms, they add to this core team progressively, reaching a maximum on election day. Recruiting a workforce that is appropriately skilled at all levels for each election cycle can clearly help minimize administrative errors.

Working Group members noted that the usual ad hoc temporary staffing approach involves recruiting about 50 percent new personnel at each election. They also agreed that pre-confirming a substantial core of competent, qualified election personnel who are willing to work at successive elections would be far preferable to dealing with a large cohort of new workers every time.

Some EMBs are concentrating on creating and maintaining databases of previous election staffers who have performed well. Communicating with these people between elections, and assuring them of priority in hiring at future elections, are considered key to developing and maintaining proven levels of continuity and competence in the temporary workforce.

Many EMBs face considerable challenges in recruiting election personnel because their legal frameworks require long hours of work and do not provide significant remuneration. Given the legal importance of election workers' duties, this would seem unsustainable. Nevertheless, some EMBs believe that fundamental structural changes in the delivery of voting services will be required before historically-rooted assumptions regarding election worker hours and compensation rates can be addressed.

Improving training

No matter how skilled recruited employees may be, they need specialized training to properly execute their election administration roles. High-quality training can certainly help to reduce administrative errors during elections.

Working Group members identified the following concepts to consider seriously:

Reducing complexity

Discussing the concept of a spiral of electoral authority (see graphic below), Working Group members established that different EMBs have vastly differing entry levels at which they access the hierarchical structure and can exercise authority to set electoral rules and processes.

Reducing complexity
Text Description of the figure Reducing complexity

EMBs in the longest-established democracies tend to be mandated to develop guidance for implementing highly prescriptive legislation and regulations that are controlled by legislators. EMBs must develop their policy to support, and stay entirely consistent with, pre-set regulatory, legislative and constitutional requirements.

However, EMBs in some newer democracies have full regulatory powers and may also actively initiate, develop and approve new legislative provisions in electoral law.

Statutes and regulations in both older and newer democracies hold highly prescriptive details for election procedures. Only rarely does a nation's electoral law authorize a general framework of principles and guidelines from which an EMB may establish detailed procedures, even though such legislation would enable continual innovation and a steady evolution of implementation methods.

Most EMB representatives in the Working Group reported that the legislative framework in their respective countries was highly prescriptive and very detailed for all election procedures. In some cases, legislation goes so far as to prescribe which election official must perform which task or procedure. This severely constrains an EMB's independent ability to reduce complexity, organize work optimally and simplify temporary election officials' tasks. It was agreed that making a necessarily generalist staff apply complex procedures is what leads to most election administration errors.

It was also agreed that EMBs will need to find ways to influence governments and parliaments proactively and to cooperate to find ways to reduce administrative complexity in the voting process, while keeping the overall integrity of the process high.

Pre-testing procedures

Even where electoral law is highly prescriptive, an EMB has the authority and responsibility to design the detailed implementation of election procedures. Ensuring that procedural implementation actually works for the ordinary non-experts who form the temporary election workforce can greatly reduce the odds for error.

Having sensible, understandable, consistent procedures reduces confusion. While pre-testing procedures may take considerable time and effort, the paybacks in improved compliance can make it a very worthwhile election preparation. It will not be realistic for all processes to be fully tested in an election context, but each process should be managed according to the risks that it presents.

Pre-testing for workability and consistent performance is most worthwhile for certain high risk procedures such as:

Monitoring and measuring compliance

If no baseline measurements are taken of overall compliance and the extent of material errors, gauging progress is impossible. However, this kind of study presents a major step for an EMB to undertake, and many have yet to calculate the cost/benefit equation of such proactive auditing.

Working Group members agreed that every professional, responsible EMB should undertake audits of election processes to improve its organizational performance. Better election process administration yields better compliance with laws and policy requirements, and this will result in fewer potential court cases involving contested election results.

However, it is very important that the initial audit be clearly conceived and accurately communicated, so that the public and all electoral stakeholders understand it properly.

One challenge in measuring compliance is that many election sub-processes do not provide a paper audit trail to examine after an election. This means that compliance must be monitored and measured in real time while an election is underway. This kind of data collection demands a substantial audit workforce and a carefully designed, exacting methodology that ensures statistical accuracy without compromising voting processes, the secrecy of the vote, or individual voters' privacy.

Taking a professional approach to measuring compliance levels at successive elections builds the foundations for continual long-term improvement that can progressively reduce election administration errors. Yet the act of measuring compliance to make that improvement presents a real challenge: to avoid the erosion of public confidence in the process. Administrators must balance desirable levels of transparency with the possibility that someone may appropriate their administrative error rate studies and attempt to highlight them for purely partisan reasons. This could, perhaps, be motivated by a desire to gain public support for otherwise unmerited legal challenges of election results.

Considering costs

Undoubtedly, improving procedural compliance in elections comes at a cost. But the price of not doing so could be even greater, in money and in repute.

Working Group members discussed a theoretical construct which suggests that any change in electoral public policy must balance on three legs, such that a change to any one of them demands a rebalance to maintain overall stability (see graphic below).

Integrity, Accessibility, EconomySignificant advances since the mid-twentieth century have made voting more accessible to more persons, in many convenient ways. Each new extension to ballot access has been matched by new measures to ensure the voting system's integrity, with additional checks and balances introduced to prevent duplicate voting, impersonation or vote tabulation errors. In the past decade, numerous EMBs have introduced additional integrity measures as a result of amendments to electoral legislation, many of which are rooted in legislators' desires to reduce openings for voting fraud. Each accessibility and integrity change has carried new expenses the costs of administering elections over the past 50 years have ballooned far beyond monetary inflation.

In recent years, there has also been a global focus on sound public financial stewardship and value for money, with a parallel focus on managing risk. In election administration particularly, these risks have related to determining accurate election results while keeping the costs of election administration affordable. At the same time there has been a global push in public and private spheres to adopt performance measurement and quality management programs to reduce errors and increase stakeholder trust.

A consequence of these combined factors is that EMBs are now challenged to increase their procedural compliance levels while maintaining or reducing election administration costs. The Working Group participants agreed they had inadequate time to properly explore this important aspect of the compliance challenge. It would be a worthwhile topic for another forum of senior election administrators to discuss in greater detail.

Engaging legislators

Working Group members observed that the detailed procedural rules that most EMBs must administer are not devised by election administrators, but by legal drafters working on instructions received from elected legislators.

EMBs may need to find effective ways to engage with parliamentarians to discuss how to evolve electoral law appropriately and efficiently to improve compliance, sometimes in direct response to pressing issues.

This engagement may start with a formal process, such as an EMB publishing its concerns about the need for legislative amendments following a general election. Such a document might include a clear description of the particular problems needing resolution and include well-researched descriptions of various options and their costs. Engagement may then progress to presenting proposals to a parliamentary committee responsible for electoral law review.

Other opportunities may also be available to build understanding and consensus within different groups of legislators. The EMB may wish to set up workshops and invite election experts to share their knowledge with interested legislators. This may give legislators a way to agree on a strategy, across partisan lines, which is believed to be the most effective approach for addressing a particular compliance problem.

A less formal approach may be to invite MPs and political party officials to observe by-elections, referendums or general elections in other countries. Many have little operational knowledge of how electoral events are administered or how challenges develop when a large, temporary workforce must deliver complex prescribed procedures with high precision. An EMB can build legislators' confidence by showing them the reality of behind-the-scenes preparations and frontline election worker activity. Such informal engagements can help develop a level of trust about an EMB's motivation for requesting legislative changes to improve and simplify electoral procedures.

As electoral processes evolve to include different technologies, it will be useful for EMBs to provide a neutral educational environment to demonstrate technology options and opportunities to elected politicians and political party administrators. Such demonstrations should be accompanied with a transparent discussion about the costs and risks associated with each.

Anticipating the future

Working Group members all agreed that a once-dominant culture of paper is fading rapidly; that technology's growing reach is affecting virtually everyone on the globe; and that national electorates are growing more sophisticated due to higher education levels and better daily access to information and public services. To respond, both legislators and EMBs will be required to advance election processes greatly over the next 25 years.

The Working Group's consensus was that a paperless future is on the visible horizon. Within decades, using pens or pencils will become foreign to many young people. Within 25 years, polling location queues are likely to have become quaint memories. By then, most voters will probably have voted in at least one national election using a portable hand-held device, smartwatch or some other as-yet-unconceived technological item. New election processes, and the substantial legislative changes to allow them, will need to continually identify, adapt and apply technologies that can best serve voters while ensuring voting integrity. Whatever form voting takes, citizens will demand that their EMBs find convenient ways to engage with them.

There remains a slim possibility that citizens around the world will continue to value a completely manual, paper-based voting transaction and consider it to be a necessary quirk of electoral democracy. However, it seems much more likely that EMBs will need to engage with voters digitally and be widely trusted to do so with appropriate levels of privacy and security. Any move to electronic voting must be closely tied to demonstrations of unassailable integrity and reliability, whatever voting processes are used.

As this occurs, an EMB's responsibilities are likely to become far more complex. To the extent they still participate, temporary election workers likely will need to understand and be able to use current information and communication technologies in extremely sophisticated ways. At the same time, EMBs will need to accurately anticipate the skills future election workers should possess, when they grow up using electronics rather than paper and pens. Inevitably, new compliance challenges will emerge.

Working Group members conceived a broad range of areas where election process may evolve.

These included:

Conclusion

At the very heart of all EMBs' accountability is their responsibility to ensure that the rules of election procedure are followed. This central responsibility to ensure integrity in voting procedures connects directly with the reality of asking a massive temporary workforce to administer the very fine points of voting processes on election day.

Compliance problems can quickly prompt serious questions about the trustworthiness of election outcomes. Legal challenges can rapidly erode the public's confidence in an EMB's ability to perform its role of facilitating and overseeing the conduct of a nation's election process. As elections become more procedurally complex and evolve to depend more on technology, compliance and integrity will continue to be tested and challenged.

As election victories hinge more and more on small ballot count margins among greater numbers of contesting candidates and parties, it becomes clear that EMBs must consciously take a proactive, professional approach to managing compliance. This includes working effectively with legislators to ensure that changes to election rules are well informed and practical for real world use; carefully designing process implementation to optimize compliance; and pre-testing new procedures to minimize human errors.

Electoral stakeholders' expectations will keep evolving to reflect broader societal trends. The body politic will continue to expect its public elections to be demonstrably free of material errors. Voters will demand efficient service and personal convenience to accompany all of the voting process choices available to them. Academics, legislators and partisan stakeholders are all becoming more interested in the way EMBs administer the vote; they will expect performance standards to be established and will insist that integrity measurement data be collected and shared in a transparent way.

The topics of procedural compliance and the importance of preventing election official errors are not new. But public expectations, demands for electoral integrity and the changing formal obligations of EMB accountability have recast them in a new light.

The Working Group agreed that preventing material errors in election administration presents major organizational and operational challenges. Nevertheless, members were able to identify numerous suggestions for making substantive improvements.

EMBs can and should pursue those methods that best address their particular compliance challenges. This work is vital to serving the public interest in every democracy.


Footnote 1 The Working Group on Accountability of Election Management Bodies for Voting Integrity is made up of senior EMB representatives from: Australia, Canada, Kenya, New Zealand, Nigeria, South Africa and the United Kingdom. The July 30/31, 2015 meeting of the Working Group was organized by Elections Canada and hosted by Canada House.

Footnote 2 Final Report: 'The 2013 Federal Election', published by the Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, Canberra, April 2015. Available online at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/2013_General_Election/Final_Report

Footnote 3 Definitions aggregated from Oxford and Cambridge dictionaries. See http://www.oxforddictionaries.com/ and http://dictionary.cambridge.org/

Footnote 4 "Deepening Democracy: A Strategy for Improving the Integrity of Elections Worldwide", p. 6. Report of the Global Commission on Elections, Democracy and Security (2012). Available online at: http://www.idea.int/elections/global-commission-2012/

Footnote 5 Extract from the mission statement of The National Committee on Voting Integrity. Available online at: http://votingintegrity.org/