Issues in Election Law and Policy

: A Note About the Supreme Court Showcase

This note comes in the context of the current discourse about the election matters in Ghana. The proceedings at the Supreme Court are indicative of the historical relationship between constitutional law and bona fide democracy. Sometimes that relationship requires the intervention of a Supreme Court in democratic elections and politics. The ongoing presidential election complaint appears before the Supreme Court acting as the constitutional court of original jurisdiction in national election petitions. The petition at bar is a constitutional case of first impression. When national elections prove defective, the Supreme Court may consider a number of remedies including potentially the invalidation of compromised election returns.

The election of 2012 may have projected the frail underside of elections. As participatory events involving millions of people, elections tend to be fraught with the capacity for mistakes, ineptitude and various propensities and intensities of fraud on a continuum from retail fraud to outright or wholesale fraud. Electoral corruption and corrupted elections are problematic issues in law and democracy. Electoral processes in democracies, including more matured ones, more or less harbor an appalling secret, namely inaccuracies and mistakes that may potentially infect the actual process of recording and tabulating votes. Perspectives in the law of democratic elections portray that elections have an unacknowledged margin of error. The presence of such errors in elections seldom rise to the forefront and tend to be an unspoken dimension of potential occurrence.

Absent fraud or willful manipulation, the error in any election might be deemed random. Even if ex post analysis reveal systematic tendencies to make errors, as long as those systematic trends are not known in advance and intentionally exploited by state actors, who, for example select election technologies such as tabulation software, there may appear to be less reasonable cause to believe that the resulting error rate reflected a calculated political manipulation by those holding political power. The judicial tendency in such scenarios is to let the errors lie where they fall. However, there are also circumstances where the consequences of electoral error have manifest nationwide implications. This is more so when error threatens to tip the scale of an election for president. The legal foundations of such issues have connotations for the remedial phase of the law of the political process. To the extent that politics is not independent of existing laws and institutions, those who control existing arrangements can shape the outcome of elections that presumably entrench their power. Because the law cannot be separated from genuine democracy, the law mediates the delicate balance between state, government and other political interests. Where there is electoral dysfunction, it may be counterproductive to defer to the political process to redress electoral defects when elections are challenged after the fact. It is a recognition that once the votes are counted, every potential decision, whether procedural or substantive, may be outcome determinative.

Comprehensive adjudication of such electoral contests is practically challenging. An election law case may encompass multiple components, including but not limited to the guiding principles involved, the relevant issues at stake, a cornucopia of evidence, array of applicable law(s), legislative history and intent, statement of case and stipulations, judicial rulings and decision making. The analytical environment of such an engaging case involves a seamless web of legal sophistry that embrace numerous juridical tracks such as Constitutional Law, Election Law, Evidence Law, Principles of Equity, Civil Procedure, Practice and Techniques, Statutory Construction and Synthesis, Legal Ethics, Legal Methodology, Rules of Court, Public Policy Directives, Regulations and Compliance. A controlling issue in the current case is whether non compliance, if any, with lawful standards affected the electoral outcome.

In electoral competitions, statutory violations and lapses may take many forms. Accordingly, there is a wide range of potential remedies for resulting defective elections. Primarily, testing or contesting an election law may present an opportunity to subject it to extensive judicial or administrative elaboration. The other issue is that sometimes, the state through the action, abdication or negligence of those whom it has clothed with authority, permit electoral fraud and abuse to materialize. In such patent cases of imputed state action, judicial remedies are forthcoming. Crafting remedies for defective elections may also be informed by the germane principle in democratic election protocol that a constitutional provision cannot be used to attain an unconstitutional result. National election law may also explore the pertinence and potency of the remedial concepts of void and voidable elections. Another remedy for faulty elections is that a Supreme Court may invalidate the results and order a new election. This is because sometimes an injunctive order that forbids an unconstitutional electoral practice in the future, necessarily leaves intact the results gazetted under a prevailing unlawful scheme. Where warranted, invalidation provides a more robust remedy to the extent that it returns the voters more nearly to the status quo in which a more constitutional election can be conducted. The derivative issues to consider include the time and costs associated with new elections. Additionally, the delay involved in preparing to conduct new elections may leave in office incumbents with unsettling legitimacy issues.

Contemporary legal thought expresses three theoretical notions for exercising the power to invalidate elections. The first is invalidation as retribution for outrageous, intentional, illegal conduct by government officials and agencies during the election encounter. Determining deliberate deception and intentionality is sub judice. The second theory is a per se rule that authorizes invalidation for the purpose of ensuring electoral purity. The third approach contemplates invalidation when unconstitutional actions, commissions or omissions were outcome determinative. This standard dovetails the legal issues set forth by the Supreme Court in Akufo- Addo et.al. v. Mahama et.al. Even where a likely constitutional violation is established, a court may also most likely take into account notions of equity in rendering a fairly fashioned remedy.

Sometimes, the legal remedy in election law cases may also involve adjusting the vote totals. That project requires standards for determining what constitutes a legal ballot. Another remedy is to issue a permanent injunction about a particular election practice. A different remedy emphasizes systemic change. The guiding principle and idea is that having found a statutory or constitutional violation, the courts are to order relief that remedies the violations as completely as possible.

It is axiomatic that democratic elections do not take place in a legal vacuum. The centrality of legal credibility to electoral integrity is virtually universal. The purpose of election laws is to capture the correct expression of the voters’ will. Doing justice to this value is a preoccupation in election litigation and trials. In terms of trial advocacy, trials are a recreation of reality. Each party firmly believes that its version of reality is correct and tries to persuade the trier of fact or jury or a bench panel to accept its version. Ultimately, the only reality that matters most in the case at bar is the reality of the bench, what the justices believed or are persuaded or convinced, actually happened because that perception or rendition of reality will inform their opinion, ruling, judgment and verdict. Judicial verdicts involve applying the corpus of operative law to the procedurally vetted and acknowledged factual reality. Once the factual issues are settled they are assessed and analyzed on the basis of the applicable legal framework and filters. In the current election case the transcending legal bench marks, mandate and reality emanate from a constitutionally chartered and prescribed pathway. That constitutional guidance structures the Court’s task to fulfill a searching judicial review and duly establish an ingenious precedent in presidential election policy and jurisprudence.

Kwasi Sarfo

B.A., M.P.A., J.D., LL.M. Ph.D. Esq.

Professor of Political Science and Attorney-at-Law York College of Pennsylvania