Was there any legal basis for the Elections Complaint and Appeal Panel to call a total vote recount for Prizren and Prishtina?
On Thursday, the Elections Complaint and Appeal Panel, ECAP, decided that all polling stations in Prizren and Prishtina will undergo a vote recount and reevaluation, following complaints made by the Democratic Party of Kosovo, PDK, regarding Prizren, and approving three complaints by the Democratic League of Kosovo, LDK, about Prishtina.
In both cases, ECAP justified its decision by citing the high number of empty and invalid ballots, and particularly, the tight race in Prishtina between Shpend Ahmeti of Vetevendosje and Arban Abrashi of LDK.
But was there legal basis for this decision?
ECAP bases its decision on the Law on General Elections, Article 106, according to which “prior to certification of the election results, the CEC may order a recount of ballots in any polling station, or counting centre, or a repeat of the voting in a polling centre or municipality.”
The ECAP decision also quotes Article 119, Paragraph 5 of the Law on General Elections, according to which it “may upon its own discretion consider matters otherwise within its jurisdiction, when strictly necessary to prevent serious injustice.”
Nevertheless, although in line with ECAP’s interpretation that the recount can be ordered, the two decisions taken by ECAP also include an interesting point that can open endless discussions.
In addition to a recount, ECAP ordered CEC to recount and reevaluate invalid and empty ballots.
While ECAP’s interpretation regarding the recount has legal support, regarding the re-evaluation as a process, there is no article or paragraph from a law which would support re-evaluation.
Furthermore, in disposition III, ECAP, using a new term, says: “review of empty ballots will be done in line with the CEC Guideline of Procedures for Voting and Counting.”
However, this guideline does not mention anywhere in its content how reevalution of votes is to be done.
At the same time, nowhere in the legislation is it mentioned that a tight race between candidates is reason for ordering a recount or a reevaluation of ballots.
Furthermore, ECAP justifies its decisions with the fact that there were a large number of invalid ballots and a high number of empty ballots; but if one compares it to trends in local elections of 2013, the number is smaller.
According to scans published on CEC website, in 2017 in Prishtina there is a total of 656 invalid, empty and damaged ballots.
In the 2013 local elections in Prishtina, there were 836 invalid ballots, 18 empty ballots, and 32 damaged ballots. When compared to 2017, although there has been an increase in empty ballots and damaged ballots, there has also been a relative increase in the number of voters: in 2013, 72,022 people voted in Prishtina, while in the last elections, 87,442 voted.
But what is considered an empty or a damaged ballot, and what do the LDK complaints claim happened in Prishtina with these ballots?
Empty ballots are blank ballots thrown in the ballot box. Meanwhile, damaged ballots are those that were either damaged by the voter or unintentionally by the commissioners, and are not thrown into the ballot box but are marked as damaged and put in a special envelope.
Invalid ballots are considered those when the voter’s choice for a political entity is unclear, or they voted for more than one political entity, or if the ballot is not stamped; or if the voter did not vote for the political subject, but only for candidates.
The three LDK complaints cited by the ECAP decision claim that “the recount of votes needs to be done because of the pressure made by supporters of Vetevendosje next to voting centers, SMS messages sent asking for votes for Shpend Ahmeti, and that the majority of LDK monitors have reported (and in some cases even managed to write down in the election book) that Vetevendosje commissioners, especially in voting places which they were heading, knowing the tight race between the two candidates, declared hundreds of ballots invalid, and hundreds of others were considered to be empty, regardless of the fact that in those ballots the will of the voter is clearly visible.”
Article 117, Paragraph 3 of the Law on General Elections states that decisions on appeals should be “based on clear and convincing evidence.”
LDK’s proof submitted for its complaints included statements of four voters, copies of election forms, copies of empty and invalid ballots, SMS messages and other photographs – all of which now remain to be investigated by the prosecution.
To make its decision, ECAP considered these claims as sufficient and did not give additional information on a number of specific cases that LDK commissioners had recorded as irregularities in the election center record book; instead, their argument vaguely mentions that there are “some cases.”
Similarly, in the decision regarding elections in the municipality of Prizren, ECAP cites the complaint of PDK that says that all invalid and empty ballots need to be reevaluated, and that all regular ballots need to be recounted because there were irregularities that affected the mayoral runoff results.
The decisions on both cases seem to be copies of each other, but the common denominator in both is ECAP’s emphasis on saying that these decisions were taken in order to “increase transparency and remove all doubt,” but without giving a single piece of evidence that justifies the total recount and reevaluation of ballots in these two municipalities, over a partial recount in centers where convincing proof of irregularities was presented.
Furthermore, ECAP does not provide a logical and argued explanation of why the recount and reevaluation of ballots needs to be done before conditional ballots have been counted.
In conclusion, ECAP’s claim that the main reason for a recount was to remove all doubt failed the moment it published its decision, since Vetevendosje, as the party leading in both of these municipalities, vehemently opposed the decision. How this will end, only time can tell.
Correction November 24, 2017: A previous version of this op-ed incorrectly stated that there were 1,036 invalid ballots in Prishtina’s runoff elections. The correct total amount is 656.