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Paragraph 116

II. Comments on the text of the draft law

J. Voting, counting and establishment of results

PEC may declare the results invalid in their precinct if infringements of the law have occurred that make it impossible to determine the will of the voters on three separate grounds (Article 91). All three grounds contain a minimum percentage of abuse that must occur before the provision becomes effective: in the case of illegal voting the level of abuse must exceed 10 per cent of the number of votes; in the case of destruction or damage to a ballot box that makes it impossible to determine the content of the ballots the number of such ballots must exceed 20 per cent of those who received ballots; in the case where the number of ballot papers in the ballot box exceeds the number of voters who received ballots the abuse must exceed 10 per cent. Such arbitrary standards of impermissible abuse are hard to justify. They establish an acceptable level of fraud which is not compatible with the conduct of proper elections. As a matter of principle election results should be invalidated if the level of fraud or misconduct was such that the will of the voters cannot be determined.[1] OSCE/ODIHR and the Venice Commission recommend that these provisions be reconsidered and invalidation of elections should be possible at all levels where irregularities may have affected the outcome.

[1] Code of Good Practices in Electoral Matters, CDL-AD(2002)023-rev.), II.3.3.e recommends that “the appeal body must have authority to annul elections where irregularities may have affected the outcome”.