It is almost inevitable in the
course of electoral competition that disputes will arise and so effective electoral dispute resolution
mechanisms are vital because such disputes, “have the potential to undermine
the integrity of the electoral process and lead to either overt or covert
social conflict.”[i]
According to both legal-electoral theory and political science, the “System
for the Resolution of Electoral Disputes” refers to the system of appeals through
which every electoral action or procedure can be legally challenged. Legal
appeals related to electoral issues can be submitted before judicial or
political agencies. Such a system aims at ensuring regular and completely legal
elections. Legal elections depend on legal corrections of any mistake or
unlawful electoral action. Therefore, the system’s aim is to ensure real
protection for and effective enforcement
of the political rights to elect or to be elected. To do so, the system ensures
to all participants (political parties, citizens and candidates) that the
voter’s decision will prevail. The system aids in the protection of certain
values that support every electoral action and every electoral procedure as
follows:
- Legality
- Certainty
- Objectivity
- Impartiality
- Authenticity
- Clarity
- Justice
The whole system is based on an overriding principle: the judicial agents
in charge of sorting out electoral controversies must be independent, impartial
and technically proficient in order to ensure
constitutional resolutions.
The system for the resolution
of electoral disputes in modern democracies is fundamental to build up stable
political systems and to build up a regular legal system as well. The system’s
contribution to protect fundamental rights and to strengthen the democratic
governance of any country is evident. The legal framework should therefore clearly state that every voter,
candidate, and political party has the right to lodge a complaint with the
competent election commission or court, require that body in turn to render a
prompt decision and provide for the right to appeal to the court of last resort.[ii]
The legal system
should also ensure that the complaints system is transparent, understandable
and free of unnecessary obstacles, particularly high cost.[iii]
Transparency also needs to respect the need for confidentiality during
investigation and internal decision making but to the extent possible the
reporting on general progress is encouraged and most importantly the final
adjudication should be fully public.[iv]The judicial resolution of
electoral disputes has become a fundamental feature of any electoral democracy,
not only for those countries undergoing democratic transition and
consolidation, but also for those countries whose democracies can be seen as
both advanced and mature.
From a historical point of view, the initial trend within democratic
constitutionalism to empower parliamentary electoral colleges in both Europe
and America has been diverted; electoral controversies are now sorted out by
judicial institutions.
In Latin America for instance,
the Uruguayan Electoral Court and the Chilean Electoral Qualifying Court were
created in 1924 and 1925, respectively; in the decades following those years, especially
during the second half and last quarter of the twentieth century under the
so-called “third wave”, other countries in this region of the world, followed
the Uruguayan and the Chilean examples. Mexico created the Federal Electoral
Tribunal of the Judicial Branch in 1996.
In Europe, since 1879 the British system empowered a couple of judges
of the King’s (currently Queen’s) Bench Division at the High Court of Justice
to solve electoral disputes. In 1919, according to its own constitution,
Austria provided the Court of Constitutional Justice with such powers. Besides,
France empowered its Constitutional Council in 1958 and Spain, when civil
rights where involved, empowered the Constitutional Tribunal in 1978.
Indonesia empowered its Constitutional Court to sort out electoral disputes
in 2003.
The relevance of electoral courts in charge of reviewing the
constitutionality and legality of elections can be fully understood by
mentioning some of their rulings:
In Mexico, elections aimed at electing governors (Tabasco in 2001 and
Colima in 2003) were declared null and void, and historical fines were imposed
upon national political parties (2003). The Argentinean Supreme Court of
Justice nullified the primary elections of the Justicialista Party (2003). A
ruling from the Electoral Tribunal of Paraguay adjusted the percentage and
location of electronic voting machines to be used in general elections (2003).
The electoral courts of Guatemala reviewed the presidential aspiration of
Efraín Ríos Montt (2003), just as the electoral courts of Venezuela did in
respect to the presidential referendum aimed at removing the President from
office (2003-2004).
The United States Supreme Court also played a decisive role at the 2000
presidential contest. Similarly, the Spanish courts in charge of sorting out
electoral disputes, delivered important rulings such as declaring both illegal
and unconstitutional those political parties apparently related to terrorist
groups (2003). The role played by the Central Electoral Agency between March 11th
and election day (2004) is also worth mentioning. The Supreme Court of Justice
of the Russian Federation made a very important distinction between broadcasting
general information and electoral advertisement (2003-2004).
The previous precedents fully prove for democratic societies of the 21st century the significant role played by the electoral justice system and the
protection of the fundamental right to legal elections.
Judicial systems for electoral disputes resolution uphold many judicial
principles established by the rule of law, such as the existence of independent
and impartial judges or tribunals, legally empowered and in charge of reviewing
legal appeals. Such principles are recognized by international rules aimed at
protecting human rights, such as those contained in articles 2, section 3,
paragraph a) and 14, section 1 of the International Covenant on Civil and
Political Rights, or those contained in article 8, section 1 of the American
Convention on Human Rights.
Even those countries that have
not provided courts with electoral reviewing powers are nonetheless supposed to
accomplish these duties. Such is the case of Nicaragua and Dominican Republic
where the electoral reviewing powers are vested in executive but independent
agencies. It is also the case of Argentina, where some cases are sorted out by
executive agencies and reviewed by political institutions.
[i] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 29.
[ii] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 31.
[iv] Robert Dahl and Michael Clegg, “Legal
Frameworks for Effective Election Complaints Adjudication Systems.” In
International Foundation
for Electoral Systems, Guidelines for Understanding, Adjudicating,
and Resolving Disputes in Elections (GUARDE),Edited by Chad
Vickery. (United States of America: IFES, 2011), 102.
