EIP 2023 PANEL 7 - ROUNDTABLE: COURT LITIGATION OVER TECHNOLOGY IN ELECTIONS
Channel: Electoral Integrity Project
Date: 2023-07-06

For decades, many have hoped that technology would revolutionize how elections are conducted. Replacing traditional paper-based approaches could offer a dramatic improvement in voter identification, faster and easier voting and results, higher accuracy, heightened integrity and public trust, and lower cost. 

However, electoral technologies have proven vulnerable to failure and security breaches, distrust by contestants and voters, inflated costs, and legal challenges. Misperception and suspicion of electoral technology have often proven as damaging as its actual weaknesses — a fact well exploited by losing candidates, particularly in closely contested, high-stakes elections. Different types of election technology can fail for a myriad of reasons, including procurement problems, institutional capacity constraints, lack of network coverage, or other factors outside the direct control of the election management body (EMB).  As noted above, technology can also be deployed effectively, but nonetheless become a vector for disinformation. Given that elections are increasingly litigated (e.g., Malawi, Kenya, Nigeria), judges need to be prepared to deliberate on a range of issues involving technology, including procurement, piloting, testing, deployment, auditability, and security. 

Transparency in each of these phases is a necessary condition for audibility. If allegations around election technology are brought to the courts, the judiciary may need to adapt rules of procedure to allow for the consideration of digital evidence and the involvement of ICT as experts during proceedings or as friends of the court (amicus curiae). The task of judges in these cases will also be made easier if they have the opportunity to familiarize themselves with the technology and its intended use by the EMB before the election begins. 

This panel will explore how electoral technology should be handled with respect to electoral justice. Panelists (justices and senior election/legal experts) will discuss common challenges in litigating disputes related to election technology, in particular from the recent Kenya (2022 General Elections), U.S., Brazil (2022) and Nigeria elections (2023 February), present lessons learned from recent cases, and emerging best practices and challenges. 
Chad Vickery, IFES Vice President of Global Strategy and Technical Leadership (Moderator)

Justice Yargata Nimpar (Nigeria Court of Appeal)

Judge Tunheim (U.S. District Court of Minnesota)

Justice Daniel Musinga (Kenya Court of Appeal and Vice President of Judicial Council on Elections)

Ronan McDermott (Global Sr. election expert)

Typhaine Roblot (IFES Sr. Legal and Justice Advisor)