Mapping electoral fraud: is there a role for international

courts?
Dmitry Kurnosov, University of Copenhagen, Centre of Excellence for International Courts

Abstract

Mathematical and geographic tools become increasingly popular in detecting electoral fraud.
They help find suspicious pattern in conduct of elections and vote tabulation even when
interested parties lack resources. Thus such tools can empower democracy activists against the
entrenched regimes, perpetrating electoral fraud. One of the examples of the power of fraud
detection are the protests, which engulfed Russia in the wake of the disputed 2011 legislative
election. International courts could serve as natural partners of democracy activists. Democratic
rights are enshrined in the majority of regional and global human rights instruments. On the face
of it, nothing should prevent democratic activists from achieving standing in electoral disputes.
However the involvement of international courts in the issues of political power is inherently
fraught with a danger of backlash.

Introduction

Electoral democracy is becoming deeply entrenched in the international legal order [Davis
Roberts, Carroll 2010] as both the only acceptable collective identity of a sovereign. At the same
time, various international human rights instruments assert an individual right to participate
(either as a voter or as a candidate) in a free and fair vote [see e.g. Hansen 2003, Dawood 2012;
Nootens 2015]. In the legal order of the European Convention of Human Rights these
developments manifested themselves in the proliferation of soft law, which however had direct
political impact due to the political criteria set for the aspiring EU member states. In other
jurisdictions electoral rights were codified in hard international legal instruments, such as the
CIS Convention on the Standards of Democratic Elections, Electoral Rights and Liberties.
Further institutionalization of electoral rights came as a result of the several judgments of the
European Court of Human Rights, most notably Hirst v. United Kingdom (No.2), which asserted
the individual character of the right to vote, Sejdic and Finci v. Bosnia and Hercegovina and
Paksas v. Lithuania, which affirmed similar outcomes, regarding candidates in an election. In
other judgments, the Court actively defended democracy-related rights by assessing the adverse
effect of particular legislation on political actors (see e.g. Republican Party of Russia v. Russia or
Stankov and United Macedonian Organization Ilinden v. Bulgaria).

International recognition of the right to a free and fair vote also manifests itself in the practice of
the states and other actors in international relations. Some international organizations implicitly
or explicitly state that democracy is the only system compatible with their human rights regime.
(see e.g. the ECtHR Judgment in United Communist Party v. Turkey) Others, such as the African
Union, Organization of American States and the Economic Community of West African States
employ anti-coup policies by refusing to recognize undemocratic transfer of power. Against this
background, international monitoring of domestic elections has become a widespread practice
[See e.g. Boda 2005]. Electoral monitors have developed a framework of requirements against
which the conduct of elections can be assessed in procedural terms. Such a framework is largely
standardized, allowing for unbiased evaluation, which can be relevant, both in developed and
developing democracies [Boda, supra]. Electoral monitoring allows international organizations
and individual states to back up their own political judgment on the outcome of a particular
foreign election.

The above-stated developments seem to allow a larger role for international courts in judging
electoral procedures and outcomes. As institutions removed from domestic political pressures
they

Electoral Forensics as a tool of unmasking and mapping electoral fraud

Modern technology allows for faster dissemination of data, regarding electoral process. An
official electoral count would often be held in real time with detailed precinct data. This serves
the goal of highlighting the transparency and integrity of electoral process. At the same time,
political actors can hold their own alternative parallel counts as a means of putting pressure on
authorities and detecting electoral fraud. Those developments allow for large swaths of electoral
data to be analyzed. Electoral forensics [see Mebane 2015] uses this data to notice suspicious
patterns and to put them into a wider perspective of a particular election.

The most basic technique would involve looking into the numbers, announced by the electoral
authority, and checking whether they simply add up. In cases of most blatant electoral fraud, the
percentage for a particular party or candidate would be decided beforehand. Number of votes
would then be reversed-engineered to reflect this prior arrangement. This type of electoral fraud
is often easy to detect at micro-level as the results would uniformly follow the same pattern [see
e.g. Kireev 2016]. Another popular technique of electoral fraud is ballot-stuffing. In this case,
the result of a poll will be swayed either through the actual stuffing of a ballot box, altering of
election returns or through coordinated busing of bribed voters. In this case one has to look for a
visibly increased turnout and vote percentage for a particular party or candidate. However, if
taken outside of the context, the search for such type of fraud may yield false positives [see
Mebane 2015, p.15]. If voters are genuinely mobilized by certain social or political reasons, it
could yield a similar pattern. Thus, instead of electoral fraud the anomaly would result from
strategical voter behaviour.

Finally, the more sophisticated technique of electoral fraud would aim to distort the main
parameters as little as possible, while swaying results in a particular direction. It would involve
poaching of votes from one party to another. Thus, the distribution of votes would be affected,
while the turnout remains the same.

More thorough electoral forensics techniques would look into raw data from electoral returns and
search for broader patterns of fraud. Three main approaches can be distinguished. The first one,
multimodal frauds simulation model, [see Klimek 2012] looks into the relationship between
turnout and number of votes received by the winner. The model allows to pinpoint anomalies,
either in form of extreme fraud (largely consistent with pre-set percentages model of fraud) or
incremental fraud (largely consistent with the ballot-stuffing technique) Usually that would
result in a combination of extremely high turnout with extremely high percentage of votes for a
particular party or candidate. The use of model would allow distinguishing between the normal
and anomalous patterns of electoral returns. However, for it to have practical impact, the scope
of electoral irregularities has to be limited. If the whole electoral procedure is systematically
tainted, it would be impossible to distinguish between regular and irregular conduct. On the other
hand, some cases of extremely high turnout and extremely high percentage of the vote for a
particular candidate may be caused by actual political cleavages, resulting in voter polarization.

Another method is geographic clustering tests [see Mebane 2015], which allow for mapping of
voting patterns. By comparing electoral data from different locations with mean parameters it
allows to show geographical variations. In some cases it may mean fraudulent conduct, in others
political polarization, embedded in the regional context.

Finally, another method is multimodal frauds likelihood model [see Mebane et al. 2014, Mebane
2015]. Here, the analysts look into actual numbers on their own. The underlying assumption is
that an honest conduct of elections would produce results, which are random after the first digit.
However, fraudulent administrators would often favor particular numbers, resulting in their
overrepresentation. Usual suspects are often 0 and 5 [see e.g. Myatlev 2017]. If they
consistently pop up in electoral results (for example, the candidates would mostly gain 35.0, 40.5
percentage points). This technique is particularly effective for detecting extreme fraud (that is,
pre-set percentages). However, as noted previously, this kind of fraud would often be facially
obvious. What is particular value then is the ability to evaluate the extent of fraud within a given
electoral administration.
Precisely this task is crucial for the role of courts in judging the fairness of a particular electoral
outcome. The key distinction is whether the fraud was so prevalent that it does not allow to
establish the outcome of an election [see e.g. the judgment of the Ukrainian Supreme Court
regarding the 2004 contested result of a presidential election]. In this regard, electoral forensics
along with supporting statements of witnesses (such as electoral monitors) could produce a
robust conclusion of inability to establish an electoral outcome.

Limitations of the role of international courts in establishing electoral outcomes

Technological and methodological ability to detect electoral fraud is limited, however, by

political constraints on the role of international courts, at least in the European context. From the
outset, the inclusion of electoral rights in the European Convention on Human Rights was a
controversial issue. While new democracies were interested in having an institutional insurance
against possible resurgence of authoritarianism [see e.g. Moravcsik 2000], established ones were
clearly concerned of the ability of human rights institutions to undercut domestic political
process. The subsequent case-law of the Strasbourg Court clearly distinguished situations, in
which it reviewed rules and procedures on electoral outcomes. Unlike other issues (even those
intertwined with the democracy and political rights), here the notion of European consensus
and the margin of appreciation would be extremely wide, allowing for almost unlimited state
discretion in establishing the rules of political game. The emblematic case in this regard would
be Mathieu-Mohin and Clerfayt v. Belgium from 1987, which essentially distinguished electoral
procedures as a zero-sum game in which there are inherent winners and losers. States, on their
part, are not constrained in determining the share of victors spoils. Similar rationale would
underpin the judgment in Yumak and Sadak v. Turkey twenty years later. Those cases, where the
ECtHR did uphold electoral rights, it faced powerful political backlash. What is striking is that
the extent of the backlash would often have no direct connection with the practical consequences
of a particular judicial decision on a political system in question. A case in point would be the
issue of prisoner vote, where efforts of the Strasbourg Court to limit the impact by allowing
states to choose which prisoner categories would vote, were not sufficient to ensure compliance
with the new principle. A possible explanation could be the divergence of value, attached to the
right to vote in different jurisdictions [see e.g. Dothan 2016] This could signal the larger concern
about any possible incursion of international judiciary into the domain of elections. The right to
determine the workings of your electoral system may be one of the pillars of sovereignty. In a
further complication compared to 1950s, the balance of interests seems to have fundamentally
shifted. If back then new democracies were interested in robust protections for electoral rights,
today they would often act in bad faith. For them, sovereignty means not only determining how
the electoral system functions, but also how it would malfunction, when it suits those in power.
Political backlash follows external allegations of electoral fraud even if they are aired by actors
with serious institutional clout (such as foreign states and international organizations). The
involvement of international judiciary is likely to yield a similar outcome. Indeed, when
confronted with allegations of widespread fraud at Russian legislative election, the Strasbourg
Court has largely deferred to national decision-making (see Communist Party of Russia and
Others v. Russia).

The approach of the ECtHR would contrast with approaches of many domestic judiciaries, which
would be much more active in electoral issues (cases abound on both sides of Atlantic).
However, in cases of electoral fraud, the domestic judiciary may not be sufficiently politically
insulated to allow it to effectively to tackle fraud.

Conclusion

International human rights instruments put international courts in a position to