III. Comments on the Text on the Draft Electoral Law 

J. Voting, counting and establishment rules

The PEC may declare the results in its precinct invalid if infringements of the law have occurred that make it impossible to determine the will of the voters. Article 92 provides three grounds for this, which all refer to a minimum percentage of abuse that must occur before the provision becomes effective: in the case of illegal voting (i.e. voting by proxy, voting by those who are not eligible to vote, multiple 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; and if the number of ballot papers in the ballot box exceeds the number of voters who received ballots by 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] The OSCE/ODIHR and the Venice Commission recommend that these provisions be reconsidered. This has been a long standing recommendation of the Venice Commission and OSCE/ODIHR.

[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.”