The existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections.

Such a system ensures the effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process, and constitutes an important device for the State to fulfil its positive duty under Article 3 of Protocol No. 1 to the Convention to hold democratic elections.[1]

When AI systems are used in democratic processes, it may be particularly challenging to ensure transparency and accountability.

The complexity of AI systems, resulting in issues concerning explainability, and the potentially numerous upstream actors in the supply chain make it hard for individuals to detect rights violations, trace decisions and identify the accountable actors. These difficulties are compounded by evidentiary challenges. Proving that a particular AI system enabled interference had a concrete impact on the individual’s right to vote or stand for election can be difficult. In practice, rights holders may find it hard to demonstrate how such interference affected their decision-making or the overall integrity of the election. Establishing a causal link between the use of AI and the distortion of democratic outcomes may require counterfactual analysis that domestic courts may not be equipped to undertake, especially where harms are diffuse and collective.

States should adopt or maintain measures to ensure the availability of accessible and effective remedies for human rights violations in the context of democratic processes resulting from the activities within the lifecycle of artificial intelligence systems.

In the specific case of digital election technologies, Committee of Ministers Recommendation CM/Rec(2017)5 on standards for e-voting outlines accountability requirements for Member States, including: developing and updating technical, evaluation, and certification standards to reflect legal and democratic principles; ensuring independent evaluations of e-voting systems before introduction and after significant changes; issuing clear certificates that identify evaluation subjects and include safeguards against modifications; and maintaining an open, comprehensive audit system for e-voting to actively report potential issues.[2] These should equally apply when such systems are AI systems based.

 

[1] Davydov and Others v. Russia, No. 75947/11, 30 May 2017, § 274.

[2] Committee of Ministers Recommendation CM/Rec(2017)5 on standards for e-voting accountability requirements for Member States, § 36-39.