Different Systems
The electoral laws around the law establish different systems for the resolution of electoral disputes. Such diverse systems can be classified according to the nature of the top institution in charge of undertaking the legal revision of electoral actions and electoral procedures alike.
Therefore, we can distinguish different systems as follows:
Therefore, based on the methods and institutions established by modern electoral legislations, there are two distinguishable models of resolution of electoral disputes: political systems are those carried out by political assemblies, and judicial systems are those carried out by judicial institutions. Besides, there are alternative systems for the resolution of electoral disputes that have been usually adopted by emergent democracies. Such systems involve the intervention of international agencies empower to solve electoral disputes.
The judicial systems can be also be distinguished from each other. To do so, the criteria is based on the nature of the Court empowered to sort out electoral disputes brought before it. There are, thus, systems in which ordinary courts (i.e. the judicial Branch of government) review electoral disputes. In some other places, specialized tribunals (external or internal to the Judicial Branch of Government) undertake such a responsibility (such is the case of so-called electoral courts or tribunals prevailing in Latin America). Finally, there are some places in which constitutional courts are empowered to sort out electoral disputes. Anyway, it is important to mention that the idea of vesting the powers to sort out electoral disputes in non-ordinary courts is aimed at preventing ordinary judges from getting involved in political disputes or being subject to political parties’ pressure as well.
Electoral Judicial Review must be generally seen as composed by the legal disputes derived from electoral actions or resolutions taken by executive officials. Such disputes are brought by two contesting parties before a court or before a tribunal that is empowered to act as a referee in order to sort out such disputes in an imperative and impartial way.
As it has been mentioned, there is a clear trend aimed at setting down different systems of judicial review on elections. Such systems can be distinguished according to the nature of the court that is empowered to sort them out. Electoral disputes can be brought before ordinary judges (as is the case for Canada and Great Britain); before an specialized area within the Judicial Branch of Government (as is the case for Argentina, Brazil, Mexico, Paraguay and Venezuela); before specialized and independent courts (as is the prevailing case for so-called electoral courts in Latin America); or before constitutional courts (as is the case for Austria).
Legislative Model
According to some legislations that have not followed the dominating 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 faculties are known with 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. Besides, such verification must be 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 us distinguish that model from the judicial one. According to such principle whereby all branches of government must be seen as independent from each other, no branch of government can intervene in the integration 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 of the executive. Likewise, the aforementioned principle aims at preventing any kind of damage against 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 at both the nineteenth and twentieth century. 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 faculty of sorting out electoral disputes. On the other hand, the Colombian Constitution vested such power in counting judges.
Nowadays, 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 addition 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 faculty 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 recent and sensitive political changes from socialism to democracy undertaken by them.
Judicial Court Model
The model of ordinary justice, also known as the English model, provides ordinary judges of the Judicial Branch with the power to resolve electoral disputes. Sometimes, ordinary judges resolve the disputes submitted to them. However, some other times, ordinary judges can also review electoral rulings issued by other institutions.
In 1868 a Parliamentary Act was enacted, aimed at preventing the abusive resolutions from the House of Commons, and was then modified in 1879. Such Act empowered two judges from the King’s (Queen’s) Bench Division of the High Court of Justice to judge on electoral disputes. The House of Commons came to terms with the ruling of the appointed judges.
This model is based on the independence of the judiciary. The basic principles of the judicial independence can be found not only in some parliamentary acts, but also in several international instruments such as: The Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights as well.
As in England, this is the system prevailing in Canada where the ordinary jurisdiction is in charge of solving electoral disputes. The electoral authority of the judiciary is combined with the functions of Elections Canada and the corresponding Commissioner of Canada Elections in organizing the elections.
Those who support the judicial model consider that the task of judging and qualifying elections has a judicial nature, and as such, it must be done by a judicial authority. This, in order to guarantee the authenticity, regularity and validity of the election, preventing the officials in charge of organizing the election from acting as the qualifying authority as well. The risk becomes clearer if most of the officials carry out their duties according to political and party interests, ignoring law and justice considerations. From the perspective of the rule of law, the convenience of such an exclusive political control results somewhat dubious.
Electoral Tribunal Model
The characteristic feature of the Latin American model of electoral tribunals is the establishment of specialized electoral tribunals (courts, juries, boards or councils) in charge of solving disputes on electoral results. The nature of these tribunals can be either judicial or executive and they can function as higher or lower courts. This can be considered as a major Latin American contribution to political science and electoral law as an important condition of recent democratic processes in this region, and it validates as well the rule of law and the dispute resolution through legal bodies.
The jurisdiction to solve electoral disputes granted to these specialized Latin American electoral tribunals (courts, juries, boards or councils), which in some cases have autonomy with similar powers than the judiciary, has fulfilled the need of guarding the judicial nature of qualifying the election. In this way, resolutions are made in accordance with constitutional and legal principles, and without exposing neither the judiciary nor the Supreme Court to frequent criticism at their response to political or party interests. This competence has been extracted from political assemblies whose members were not impartial, allowing their political interest to influence their resolutions.
During the nineteenth century and the first quarter of the following one, electoral systems for dispute resolution in Latin America were politicized. In contrast, in the last seventy years we can gradually find in the region those specialized electoral tribunals (courts, juries, boards or councils) in charge of solving electoral disputes, and in some cases even in charge of organizing the election. These electoral authorities have an executive or judicial nature (some of them are independent and others are part of the judiciary or executive power). Two early examples of this model are the Electoral Court of Uruguay, which was first introduced in the law in 1924, and the Qualifying Tribunal of Elections in Chile included in the Constitution since 1925.
The gradual establishment of these specialized electoral tribunals (courts, juries, boards or councils) in the region comes after the politicized system of conflict resolution. They are firstly introduced –generally and taking into account that each country has its own history–by means of an administrative electoral organ prescribed by law and with a temporal character. This organ is made up by representatives of the political parties and the executive power. The next step entails awarding these organs a constitutional level and granting them protection to guarantee their autonomy and impartiality (political parties are less present and in contrast citizens participate more in their integration; qualified majorities are also required in the organ that finally designates its members). Most of the time, such a transformation also implies that these models of electoral authority become permanent, specialized and aimed at solving conflicts (yet keeping administrative powers or establishing parallel electoral authorities, some of them in the judiciary).
Autonomous
The autonomous tribunals are specialized organs prescribed by the Constitution that are not part of any of the three branches of power.
The fact that tribunals are not included neither in the judiciary nor into the executive power, does not exclude them from the judicial review that guarantees a fair trial. On the contrary, the removal of the traditional powers, especially those elected by the voters, guarantee their independence in the resolution of electoral disputes and the qualification of the election.
The existence of an autonomous electoral tribunal is a huge step forward for those countries where the powers themselves were in charge of qualifying the lawfulness of their own elections.This is the first step to overcome the traditional model of conflict resolution based on political debate and become a new judicial system of dispute resolution based on legal procedures.
Autonomy can also be the following step after the integration to the judiciary. If that is the case, autonomy is beneficial if it is required by circumstances,, provided that it does not affect the principles of the jurisdictional process. Thus, one of the benefits would be to prevent the judiciary from interfering in political matters.
In Latin America, judicial agencies are established in sixteen out of the eighteen continental countries. Nine of those sixteen electoral courts are autonomous (Costa Rica, Chile, Ecuador, El Salvador, Guatemala, Honduras, Panama, Peru, and Uruguay).
Part of the Judiciary
The electoral tribunals that belong to the judiciary power are judicial institutions specialized in electoral issues and ruled by a due process of law considerations.
However, such tribunals can be independent from any superior court. In Mexico for instance, not even the Supreme Court of Justice has powers to undertake further revisions of the electoral tribunal’s rulings. Therefore, ordinary courts must not interfere in electoral disputes.
The judiciary’s authorization to solve electoral disputes derives from a clear aspiration: electoral disputes have to be solved from a procedural approach, which sticks with a commitment regarding binding, universal and fundamental principles.
Any tribunal located within the judiciary is vested with more powers than any tribunal that is not. Belonging to the judiciary power provides any tribunal with a higher degree of efficacy, which makes it more reliable.
Therefore, once a tribunal that belongs to the judiciary is empowered to solve electoral disputes in an independent, autonomous, impartial and professional way, it ensures authentic, free and legal elections, and this is also the way in which a legitimate and democratic integration of government must be achieved. Bearing this in mind, two different kinds of judicial principles can be distinguished. Firstly, we have the so-called organic principles, which are those related to both the Tribunal itself and the officials working there. Secondly, we have the procedural principles which are related to the electoral jurisdiction.
Constitutional Courts Model
The so-called Austrian model is characterized by the existence of a constitutional tribunal empowered to solve judicial appeals in a definitive way. Sometimes, the Austrian system is combined with appeal systems either political or judicial, which sort out appeals ex ante.The Austrian model empowers a Constitutional Court to sort out electoral disputes.
Many European Constitutions framed after World War One followed the model used to frame the Weimar Constitution (1919) and the Austrian Constitution (1920) and empowered constitutional courts to solve electoral disputes.
As a matter of fact, the Austrian Constitution empowered the Constitutional Court to verify the elections of representative institutions at both the National Council and every single Land. The powers vested in the Constitutional Court have been extended in order to validate other democratic events (such as referendum, since 1929, and presidential elections, since 1931).
Both France in 1958 and Spain in 1978 empowered the Constitutional Council and the Constitutional Court to solve all the disputes derived from parliamentary elections in a definitive way. Besides, France empowered the Constitutional Council to solve appeals derived from presidential elections in a combined system which authorizes administrative courts to solve electoral disputes in a preliminary way. It must be said that Spain does not recognize any jurisdiction as independent from the judiciary power to solve electoral disputes.
Germany provides a clear example of organization in which a political system and a judicial one are combined to solve electoral disputes. In Germany the Constitutional Court can review the parliamentary validation made on elections.
It is also worth mentioning that many Central and Eastern European countries, such as Romania, have empowered Constitutional Courts to sort out electoral disputes.
Alternative Dispute Resolution
The alternative models for the resolution of electoral disputes are structured in both a temporal and alternative way. The existence of alternative models implies the existence of an ordinary one which is not working, an ordinary one which is not producing the expected results.
Usually, an alternative model for the resolution of electoral disputes is integrated by special agencies composed by experts and endorsed by international agencies under the United Nations jurisdiction.
Under such circumstances those in charge of solving electoral disputes have to take into account the legal and political customs from every single region. However, we must not ignore, neither the due process of law considerations, nor the democratic principles such as individual rights to free and fair elections.
Alternative models for the resolution of electoral disputes have been successfully implemented in Cambodia, Bosnia and South Africa.
