Election Petition Research Articles

‘Why the Hell Are You Befriending the Court?’ Prologue and Postscript to the Amama Mbabazi Presidential Election Petition in Uganda.

On March 12, 2016, I joined eight other Makerere Law School dons in filing an amicus curiae (friend-of-the-court) application in the presidential election petition brought by John Patrick Amama Mbabazi (JPAM). Mbabazi was the third-place finisher in the poll, garnering 1.3 percent of the final tally after incumbent Yoweri Kaguta Museveni (60.6%) and runner-up Kizza Besigye (35.6%). At 5:12PM on the day before the prescribed deadline, JPAM filed a petition in the Supreme Court challenging the validity of Museveni’s election. As was the case in both 2001 and 2006 when the polls ended up in the court, Mbabazi petition was met with a wide range of opinions.

What Role Should Academics Play in Achieving Change in Uganda? Reflections on the Amicus Curiae Application in the Presidential Election Petition

“What the hell are you doing befriending the court: Don’t you have enough enemies already?” is one of the many questions I was asked when we filed our amicus curiae (friend-of-the-court) application in the presidential election petition brought by John Patrick Amama Mbabazi (JPAM). Surprisingly, the question came from a fellow academic, who felt that the issue was too “political” for an academic to be involved in.

Red Flags of Vulnerability for the Union‐Free Company

History teaches that certain conditions and circumstances fuel union organizing drives. As described here, key areas of concern are red flags that indicate a higher likelihood of an election petition and a union election victory.

Campaign Messaging—One Word Can Make a Difference

A union election petition is filed. Within days, the employer starts receiving mail and emails from multiple consultants and advisors selling their services and products to help with a campaign. Some of these vendors can provide helpful, though often costly, products. Companies scrambling to cobble together an election campaign often look to two factors—cost and product. At the end of the day, however, one factor is more important than all others—messaging. A campaign product that does not deliver a message that will resonate for a company's employees and their particular issues will be largely useless. Even worse, as recently found in Sysco Columbia, LLC, improper messaging can be unlawful.

An Ounce of Prevention

Before the advent of email, text messages, and social media, many employers looked for union flyers posted on a bulletin board, authorization cards left in the breakroom, or employees who suddenly become secretive as red flags for potential organizing activity. However, organizing efforts no longer need to leave such signs in the actual workplace. By using digital tools and staying away from the worksite, unions may develop sufficient support among workers to file an election petition without an employer ever becoming aware of the effort until after the petition is filed.

Have Concrete Lessons Regarding General Elections Been Learnt Through Constitutional Theories and Interpretative Approaches Adopted by the Supreme Court of Ghana in the Landmarked Election Petition in 2013?

The Supreme Court being the highest court of Ghana is clothed with both appellate and original jurisdictions in the determination of cases that come before it. There are three main original jurisdictions of the Supreme Court-interpretation and enforcement of the provisions of the 1992 Constitution of Ghana; determination of classified documents and election petition for the election of the president. It is instructive to note that in the determination of all these areas of jurisdictions, the Supreme Court employs the various constitutional theories and approaches in order to arrive at just, transparent and forward looking results for the betterment of the country. It is against this backdrop that the Supreme Court was called upon by the New Patriotic Party in the 2013 Election Petition, to exercise its constitutional mandate to determine the propriety or otherwise of the election of the former President, John Dramani Mahama in the 2012 general elections of Ghana. To be able to effectively and efficiently carry out this mandate, the Supreme Court was enjoined to adopt the various constitutional theories and approaches- textualism, originalism, history and tradition, structure, precedents, philosophy or moral reasoning and purposivist, with the view to arriving at the most acceptable, transparent and uncompromising decision. Therefore, this paper seeks to unearth whether the decision arrived at by the Supreme Court in the 2013 Election Petition was actually in accordance with the appropriate application of the various constitutional theories and approaches and what lessons have been learnt therefrom so far with the view to making projections as to the necessity for the establishment of constitutional court in Ghana to solely concentrate on constitutional cases.

Lord Bruce and the Marlborough Election Petition of 1735: An Aristocratic Lobbying of the House of Commons and a Blow against the Ministry of Sir Robert Walpole

AbstractThe success of two tory candidates at Marlborough in the general election of 1734 led to a petition to the Commons from the two defeated whig candidates, alleging corruption and malpractice by the winning side. The two tories had stood on the interest of the Bruce family, led by Charles, Lord Bruce. Bruce successfully organised a vast lobbying campaign against the petition. Most of the lobbyists were MPs, but a significant number were peers, or members of aristocratic families. Lists of lobbyists and those lobbied survive in the Ailesbury (Bruce) Manuscripts, enabling historians to reconstruct and evaluate the campaign. Bruce's lobbying is a fine example of aristocratic involvement in elections to the lower House, despite such interventions having been declared unparliamentary. His triumph damaged the political standing of the prime minister, Sir Robert Walpole, who had previously declared his opposition to any candidate supported by Bruce in the borough. Bruce's lobbying also reveals extensive cross‐party co‐operation between both lobbyers and lobbied: his supporters included not only independent whigs, but many who usually voted with the ministry. This suggests that the classification of MPs in the early 18th century as either whig or tory is too simplistic and that there was more fluidity in party loyalty than has been suspected.

Burden and Standard of Proof in Election Petitions without Criminal Allegations

The burden and standard of proof in election petition without criminal allegation is in tandem with the extant Evidence Act, as election petitions is sui generis. The purpose of election laws is to obtain a correct expression of the intent of the voters. However, this paper argues that whereas proof of election petition without criminal allegations requires proof on the preponderance of evidence, the shallow chant of “he who asserts must prove” in the extant law is a conduit pipe for electoral injustice. This paper therefore makes a clarion call for the amendment of the relevant extant law to usher in a legal regime of burden of proof on the pleadings, where whoever asserts the affirmative or positive must prove on the state of the pleadings. 
 
 The rebuttable presumption of the regularity of the conduct of elections and declaration of results, no longer serve the end of justice in our electoral process. This paper therefore argues that the Electoral Act be amended to place the burden of proof of the regularity of elections and declaration of results on the Independent National Electoral Commission (INEC), to meet the desired justice contemplated in the electoral process.

Constitutional Grounds for Questioning Elections in Nigeria: An Overview

Periodic elections are major planks of democracy that has its attendant grievance procedure which ensures that the real consent of the governed is sort and obtained. The origination process in Nigeria is through election petitions, which is sui generis. The appropriate electoral statute and the constitution prescribe the grounds for questioning elections in Nigeria. The essence of this paper therefore is to resolve the apparent conflict as to where to predicate the grounds for questioning elections in Nigeria. Is it the Electoral Act, the Constitution or both in pursuit of electoral justice: Quo vadis?

Judiciary and the Enthronements of Democratic Institution in Nigeria (1999-2017)

An issue related to enthronement of democratic institution in Nigeria, has attracted judicial concern. Democratic institution has allegedly characterised by lots of irregularities; this ranges from rigging to non- compliance to the rules as contained in the Electoral Act. This has established a negative practice on democratic stability. This study specifically set out to evaluate the Judiciary and the enthronement of democratic institution in Nigeria between 1999 and 2017, with emphasis on the performance of Election Petitions Tribunals in democratic institution. The crux of this study reviewed the controversy that surrounding 1999-2017 democratic institution in Nigeria. The study adopted principle of separation of powers as instrument to managing abuse of power, to increasing public confidence and enthronement of democratic institution in Nigeria. The study adopted descriptive explanation that anchored on secondary sources of data. The paper find that injustice in the electoral process, is tool for a misplace principles of democracy, seemingly compromised electoral body and weak judicial system with dishonest, corrupt, and bias officials. This study recommended that victim of electoral fraud should be criminalise, independent judicial system should be encouraged and foster respect for rule of law.

Northwestern Football Case Essay

In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act. Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.

“Reports of My Death Have Been Greatly Exaggerated”: The Continuing Role and Relevance of Election Petitions in Challenging Election Results in the UK

Abstract An election petition is the only mechanism through which a UK election result can be challenged. In its current form, the election petition dates back to the Victorian period, when elector...

Examining the Jurisprudential Incongruity of Proof Beyond Reasonable Doubt in Nigerian Election Petition

Examining the Jurisprudential Incongruity of Proof Beyond Reasonable Doubt in Nigerian Election Petition

Election Petitions in Poland: The Efficiency Analysis of the Institution

The article concerns the analysis of procedures connected with election petitions in Poland on the basis of the constituencies under the jurisdiction of the District Court in Toruń. It should be mentioned, however, that research is currently being conducted in other courts, which even at the preliminary stage appears to corroborate the results of the analysis presented in the article. The research focuses on the guarantees of the efficiency of the electoral petition in Poland. The election petition is the most important instrument which is available to verify the validity of elections. The Constitution does not regulate this matter, entrusting the legislator with this task. The possibility of submitting an election petition implements the principle of the external judicial review of the progress of an election or referendum, which can be initiated upon the request of a legal entity entitled to submit the petition. Considering the role of the petition proceedings as well as the values which remain protected within the procedure of settlement, the legislator should demonstrate the utmost care to increase their efficiency. However, the regulations concerning election petitions are scattered around the whole Electoral Code. Furthermore, for an election petition to be justified, there must be a cause-effect link between the law violation and the results of an election, with the burden of proof placed on the petitioner. The overall result is that in judicial practice only in few cases have grievances in election petitions been considered justified.

Election Petitions in Poland: The Efficiency Analysis of the Institution

Election Petitions in Poland: The Efficiency Analysis of the Institution

Democratic Ruptures and Electoral Outcomes in Africa: Ghana's 2016 Election

Repetitive elections are important benchmarks for assessing the maturity of Africa's electoral democracies. Yet the processes through which elections entrench a democratic culture remain understudied. We introduce an important mechanism called a democratic rupture: an infraction in the democratisation process during competitive elections that has the potential to cause a constitutional crisis. It provides a new avenue of citizen participation outside of voting, and political space for opposition party realignment and to strengthen its support. Drawing from the case of Ghana, we show how the 2012 presidential election petition challenge served as a democratic rupture by contributing to the opposition's victory in 2016, enabling its political development. First, it exposed flaws in the electoral system and led to demands for electoral reforms. Second, it led to citizens being better educated on the electoral process. Third, it taught political parties that vigilance at the polling stations can help win elections. The article provides a critical analysis of the factors that shape democratic development, especially in cases where opposition parties defeat incumbent politicians.

The State of Electoral Reforms in Ghana

Following Ghana's December 2012 elections, there was a protracted election petition process at the nation's Supreme Court challenging the declaration of the winner as the duly elected presidential candidate. Even though the Supreme Court ruled in favour of the declared winner, it made several recommendations that paved the way for numerous interventions aimed at putting together proposals for electoral reform to fine-tune Ghana's electoral processes. Several such reform proposals were submitted to the Electoral Commission by the end of 2013. Nevertheless, these were not implemented to guide the 2016 general elections. The successful conduct of the 2016 elections has therefore been described as a “miracle.” Why were the reform proposals not implemented? What is the current state of reform proposals submitted to the Electoral Commission? What is the way forward? This article addresses these questions.

David Maraga: Haunted by Who? Haunted by the Ghost of Colonialism

The ghost is haunting our chief justice, after the 2017 August elections and the clear assurance of Raila Odinga that he would be going to the Supreme Court to seek redress, the ghost that chief justice emeritus, Willy Mutunga had buried, resurrected and showed its ugly face again. It came from the Registrar of the Supreme Court. The notice issued by the Registrar of the Supreme Court convening the unusual 7 pm pre-trial conference for Mr. Raila Odinga’s presidential election petition concluded with a reminder: “Kindly note that all Counsel appearing before the Court shall be fully robed”. Now, this is the ghost that is giving our Chief justice sleepless nights, he sees the ghost when he walks during the day and in his dreams.

Anticipating a Union Campaign

Union organizing campaigns are a precursor to union elections or demands for voluntary recognition. Union elections or demands for recognition occur only after a union obtains a strong showing of support among the employees it hopes to organize. After it can demonstrate this support, a union can file an election petition. In some instances, however, unions prefer to bypass a National Labor Relations Board election and seek voluntary recognition through card check.

Legislation Proposed to Change Quickie Election Rules

Unions are winning more elections than ever using the quickie, also known as “ambush,” election rules to cut into an employer's ability to campaign against the union. When there is only about two weeks between the union's filing of a National Labor Relations Board election petition—which may be the first notice the employer has of the union campaign—and the vote, unions win a lopsided 82 percent of the time. When employers have more than two weeks' notice, the union win rate drops to 67 percent, according to a Bloomberg BNA report. But the days of the union‐friendly, Obama‐era quickie election rules may be numbered, as Republicans have introduced legislation in Congress that would, among other things, set a minimum of 35 days from petition to election.