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Court of disputed returns

A court of disputed returns is a court, tribunal, or some other body that determines disputes about elections in some common law countries. The court may be known by another name such as 'court of disputed elections'.

In countries that derive their legal tradition from the United Kingdom, the legal tradition is that Parliament is the supreme law-making body in the country. The same tradition mandates that as Parliament is sovereign, it alone has authority and jurisdiction to determine who and how a person can be elected to Parliament. Implicit in that authority is the jurisdiction to determine whether a person has been validly elected, which is commonly known as a "disputed return" and gives the court its name. The court is an attempt to eliminate the partisan nature of parliament and give the determination of electoral disputes to an independent and dispassionate neutral body. As parliament has the sole authority to determine these matters, parliament must create a special law to bring that body into existence to determine those disputes.

A court of disputed returns may be constituted in a number of ways. The first is by the creation of a special court to perform that function. That has occurred in the Northern Territory, Australia, which has a special and separate court determines those disputes.

Another method is for an existing court to be given the role of adjudicating election disputes. The High Court of Australia, the Supreme Court of New South Wales and the Supreme Court of Victoria are each invested as courts of disputed returns in this manner; when handling relevant cases, they sit under the name Court of Disputed Returns. A court may also have the power to handle election disputes without being designated as the Court of Disputed Returns as such, though performing much the same function.

In some jurisdictions, the principle of Parliamentary sovereignty means that the legislature itself retains the ultimate authority to handle election disputes; notwithstanding the fact that this authority may be delegated to the Court, Parliament holds the right to overrule it.

Generally courts of disputed return have no rights of appeal, but that depends on the law that constitutes the court.

Prior to 1405, there was no codified process for resolving electoral disputes. Those disputes were resolved through what is described by authors Graeme Orr and George Williams as "custom, force and administrative action". This meant that there were no real rules in place to determine how these disputes were resolved. The manner of resolving a dispute in one county might be totally different from another county, or may result in a different outcome even if the same procedure was followed.

The first laws to regulate elections in England were passed in the reign of Henry IV. This was through the Election of Knights of Shires Act 1405 (7 Hen. 4 c. 15). The law came about due to the confusion caused when letters were purportedly issued disqualifying lawyers from voting or being elected. The Electors of Knights of the Shires Act 1429 (8 Hen. 6. c. 7) was passed allowing the common law courts to become involved in the determination of these disputes. In the 16th century, it was commonly regarded that the Court of Chancery could determine electoral disputes, particularly as that court issued the various writs to the sheriff and compiled their returns on the election.

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