In some cases where legislation has not followed
the dominate trend towards a full judicialization of electoral processes (which
demands that electoral disputes must be sorted out by an impartial referee),
either Congresses or elected legislators are empowered to validate the
contested election. In France, such processes are known by many different names
such as “power verification”, “election qualification” or “certification”. In
Mexico, such empowerment was erroneously known as “self-qualification”. The
verification of powers, also known as election qualification refers to the
examination of the legality and validity of a certain election, which starts
without any appeal whatsoever. Such verification is aimed at reviewing the
electoral results and whether the elected candidate fulfills all eligibility
requirements to be legally elected or not. Such verification is distinguished
from the appeal used to challenge any unlawful activity performed during
elections. There is a historical argument behind the legislative model based on
the principle of checks and balances, which can also help to distinguish that
model from the judicial one. According to this principle whereby all branches
of government must be seen as independent from each other, no branch of
government can intervene in the functioning of the others. Bearing this in
mind, the argument runs as follows; since the legislative branch has to be
independent, it must be protected from any kind of intervention by the
executive. Likewise, the principle aims at preventing any kind of damage to the
judicial branch, which has to be kept outside the political arena. The
objective of the judicial branch is to sort out all legal disputes submitted
before it by means of its technical skills.
Such is the classic political model. However, we can find a judicial
perspective at the origin of British parliamentarianism. Electoral appeals in
the fifteenth century under Henry the Fourth of Lancaster were sorted out by the
Chancery (which can be seen at the origin of the equity courts). The Chancellor
was a high ranking officer of the Crown and was the King’s Counselor.
Eventually, the Chancery’s Courts had the power to modify electoral counting.
However, in 1604, the Parliament nullified an electoral ruling issued by the
Chancery tribunals (in doing so, the Parliament ignored King Jacob the First’s
inconformity), thus establishing a precedent according to which members of
Parliament were empowered to judge their own elections. Such powers were valid
until a legal reform came into force in 1868.
In the meanwhile France adopted the system for verification of powers
vested in a political assembly. Such system ruled in that country from the
general states (in the eighteenth century) to the fifth republic’s Constitution
in 1958. The United States framed the Federal Constitution in 1787, which
empowered political institutions to sort out electoral disputes. Such a regime
was adopted by many emergent democracies during both the nineteenth and twentieth
centuries. During those centuries, Latin American countries adopted the
political system from the Cadiz Constitution’s model. The Mexican
Constitutional Laws of 1836 and the Colombian Constitution of 1886 were the
only cases in which the Cadiz Constitution’s model was not adopted. Mexican
Laws provided the so-called Supreme Conservative Power with the authority of
sorting out electoral disputes. On the other hand, the Colombian Constitution
vested such power in counting judges.
There are almost no systems with an exclusively political model for the
resolution of electoral disputes. As a matter of fact, even those countries
that have preserved features of a traditional political control system, have
also allowed different kinds of judicial intervention to take place, either ex-ante or ex-post. Such an evolution has turned them into mixed systems.
Among those mixed systems we can consider that of the United States.
Federal elections in the United States, which are regulated and organized by
state authorities, usually set down a system of legal appeals submitted to
ordinary courts (in some cases specialized) which are reviewed by a political
institution such as the House of Representatives (if a Representative’s
election is at stake), the United States Senate (if a senator’s election is at
stake) or the Electoral College (if the presidential election is at stake).
A similar design rules in Italy and Switzerland. On the one hand, article
66 of the Italian Constitution of 1948 establishes that both the House of
Representatives and the Senate are empowered to judge not only on the
“admission titles of their members”, but also on the reasons by which an
unlawful election might happen. All complaints derived from executive orders are
sorted out by the National Electoral Central Office which has the authority to
organize elections. On the other hand, once the counties’ governments have
finished both the electoral counting and the result’s verification, the Swiss
Federation empowers the National Council and the States’ Council to sort out
the elections of their members in a definitive way.
Regarding legal challenges against legislative and presidential elections,
Argentina is another example of a mixed political-executive system for the
resolution of electoral disputes. There, once the national electoral boards
(which can be seen mainly as executive agencies composed by judicial officers)
have ruled on the electoral results, a political institution is empowered to
review their work. The Constitutional amendment of 1994 empowered the Congress
to rule on the direct elections of the President and the Vice-President of the
Republic. The congressional elections are reviewed by both the Chamber of
Deputies and the Senate, which in those cases are turned into “electoral courts
for the validity of the rights and titles of their members”. The rulings issued
by those institutions cannot be further challenged.
Moreover, some Central
European and Eastern European countries, such as Hungary, have preserved the
self-qualification system, in spite of the sensitive political change from
socialism to democracy.
