Judicial precedents are essential to the integration of the electoral legal
system. Such a claim implies a very important change: electoral disputes are no
longer solved exclusively by political authorities but also by judicial ones
(on one hand, there are some cases in which the resolution of electoral
disputes is carried out at the courts; on the other hand, some other cases can
be seen as instances of mixed systems in which both political and judicial
authorities play a role in solving electoral disputes). Political authorities
used to solve electoral disputes by means of political criteria. Now electoral
disputes are solved by special electoral courts, which sort out disputes using
legal criteria). Electoral litigation has been judicialized and the rulings
issued by electoral courts and electoral judges (which can be seen as judicial
precedents) have become capital to understand what electoral law is supposed to
be.
In common law systems, judicial precedents can be seen as the origin of the
law (on the contrary, in civil law systems, enacted law is seen as the origin
of the law). According to legal concepts such as stare decisis or ratio
decidendi, the reasons supporting previous rulings have to be taken into
account to solve new and similar cases. Electoral law is defined not through
codes and statutes, but through judicial opinions.
In common law systems, electoral courts are very important. Such courts
deliver a fundamental contribution to build-up the legal system. Judicial
opinions (seen as judicial precedents) produce the law; electoral judicial
opinions (seen as precedents) produce electoral law.
The so-called English system or ordinary litigation system empowers judges
at the judicial branch of government to solve electoral disputes in a
definitive way. Their definitive resolutions can also have the power to put an
end to a sophisticated system of electoral appeals (which can be either
administrative or political, as previously explained).
It is clear that for non common law systems (which are usually known as
civil law systems), judicial resolutions of electoral disputes are also
important. Electoral judges in civil law systems have also made important
contributions, which have strengthened and developed electoral law. In those
countries, judicial precedents issued by electoral courts have to be used to
solve new cases.
Judicial resolutions of electoral disputes are so important that in some
cases they also decide on the constitutionality of executive orders issued by
electoral authorities. When electoral resolutions do so, they can be seen as
constitutional courts delivering constitutional interpretations.
Those who are authorized to establish mandatory precedents are the highest
courts. Precedents are established following some formal requirements such
being reached through unanimous or composed decisions. Judicial precedents
(usually known as jurisprudence) are established through repeating the use of
one ratio decidendi to solve more than one case. Such cases have to be
similar in order to be solved using the same ratio. The highest courts’
resolutions on opposite judicial opinions, which have been upheld by different
courts, are also helpful to establish judicial precedents. Usually, judicial
precedents can only be interrupted or revoked by grounded and justified decisions
of the highest judges.
How far do judicial precedents and judicial opinions reach? What are their
effects? Who are the authorities bound by them? There are restricted legal
systems within which judicial opinions and judicial resolutions are constrained
to resolve the issues contested in each single case and which are mandatory
only for courts and judges. However, there are also legal systems within which
judicial opinions and judicial precedents can have general effects (erga
omnes) and far reaching powers not only affecting every single authority
but also nullifying enacted legislation.
