Weaponizing post-election court challenges: Assessing losers’ motivations

Abstract

Globally, losing candidates have increasingly relied on courts to settle post-electoral disputes. However, scholars have not systematically explored candidates' motivations to mount legal challenges and their impact on democracy. We argue that, while overturning electoral results motivates most candidates, many also use courts for other strategic reasons, such as to bolster future electoral prospects or negotiate government jobs. Post-electoral litigation that is not responsive to fraud and irregularities can threaten democracy by eroding judicial legitimacy and increasing courts' vulnerability to political interference. We develop a classification scheme to highlight candidates' multiple motivations for filing electoral petitions. Using an original database of sub-national court challenges after the 2013 Kenyan general elections, we code only ten of the seventy-one cases as ‘high probability’ attempts to overturn election outcomes. Meanwhile, the majority of Kenyan candidate petitioners seemingly ‘weaponized’ the courts by pursuing challenges that reflected multiple motivations other than overturning their election.