The analysis of every single electoral appeal is a complex task. Such a state of affairs is derived from the confusion that prevails not only in legislation but also in the academic arena in respect of it (many times for instance, a clear differentiation between a mere appeal and a complete trial is not made). Besides the fact that the naming process for all reviews and appeals is both anarchic and inaccurate (there are several examples which can be used to explain such an anarchic situation: sometimes appeals used to solve similar disputes have different names, some other appeals do not have a name, the expression used in some countries to refer to an “administrative review” is used in other countries to designate a judicial process). Electoral appeals find in the vague regulation applied to them another conceptual weakness, just as the one derived from the fact that many aspects of such appeals are regulated by different electoral or procedural legislations.

According to many opinions, electoral appeals are legal instruments which have to be used under the law to correct, modify, revoke or nullify executive orders or judicial resolutions that are deficient, mistaken or illegal.

Among the main characteristics distinguishing electoral appeals, we can find some as follows:

1. Classes

Broadly speaking, electoral appeals can be grouped within two different classes: administrative appeals and judicial appeals. In order to avoid the anarchic situation, which we have already referred to, we will use formal criteria in what follows. According to such criteria, both ruling agency nature and denomination will be used to determine whether each single appeal is administrative or judicial.

a) Administrative

Administrative appeals are all legal instruments that can be used by an administrative agency in order to solve electoral appeals filed by political parties, candidates and citizens against executive orders issued by electoral authorities. Administrative appeals are solved either by the same authority or by a superior one.

Many countries authorize administrative agencies to solve all the appeals filed against their decisions (the National Registrar for the Civil State in Colombia in charge of issuing of revoking citizenship cards is an example just as the Electoral Supreme Council of Nicaragua can do in respect to the appeals filed against its electoral counting). Some other countries authorize a superior authority to solve the reviews filed against the orders issued by administrative agencies. Such is the case of the General Director of the Registrar for Citizens in Colombia who can review the orders issued by other departments under the General director’s command. Such is also the case for the counting commissions of Colombia, which can review the appeals filed against the actions made by voting juries. Such is also the case in Mexico’s Federal Electoral Institute, where a superior official can review orders issued by the Executive Secretary or by local or district offices.

b) Judicial

Judicial appeals on electoral issues are procedural instruments used under the law to file before a court any appeal aimed at challenging a deficient, mistaken or illegal order issued by an electoral authority.

Judicial appeals can be divided into three groups: procedural remedies, procedural reviews and appealing processes.

i) Procedural remedies: Legal instruments aimed at correcting judicial resolutions, which are filed before the judicial authority that issued such a challenged resolution. A typical procedural remedy is the clarification of a judicial opinion. Article 78 of the Internal Regulation of the Electoral Tribunal of the Federal Judicial Power in Mexico, empowers such Tribunal’s courts to either clarify a concept within the opinion or to provide a precise explanation on the resolution’s effects, whenever such a clarification does not imply a substantial alteration of the resolution. In a very similar way, the Tribunal in charge of qualifying the elections in Chile, and the Electoral Tribunal of Panama are empowered to clarify their resolutions. The Electoral Tribunal of Guatemala can also do so, whenever someone asks it to clarify a resolution that is hermetic, contradictory or not clear.  

ii) Procedural reviews: Appeals that can be filed within a procedure, usually before a superior court, against both procedural and definitive violations derived from a judicial opinion. Procedural reviews are the most important group of judicial appeals. They can be filed within a trial or just after its conclusion. According to the prevailing doctrine, procedural reviews can be divided into three separated groups: ordinary reviews, extraordinary reviews and exceptional reviews.

- Ordinary reviews: The classic ordinary review, which has a universal aspiration, is the simple known as “appeal”. Through an appeal, a superior court that is usually a collegiate one, reviews the decision made by an inferior one. The superior court reviews all the files as well as all procedural and non-procedural wrongdoings in order to uphold, modify or revoke the challenged resolution. In doing so, the superior court can issue a substitutive ruling or a direct order to the inferior court which has to issue a new, valid and legal resolution.

Some examples within this group are listed as follows: the appeals filed against electoral judges and electoral boards which are solved by the National Electoral Chamber of Argentina; the appeals filed against electoral departmental courts which are solved by the Electoral National Court of Bolivia; the appeals filed against criminal judges’ resolutions on the denial of electoral registration or electoral exclusion which are solved by the Chilean Court of Appeals; the appeals filed against the local juries for elections, which are solved by the National Jury for Elections of Peru; and the appeals filed against the electoral boards’ resolutions which are solved by the Electoral Court of Uruguay.

- Extraordinary Reviews: Extraordinary reviews are those that can only be filed on grounds that are authorized by procedural laws. Such reviews aim at determining whether a particular procedure or a judicial resolution has been legal or not. Extraordinary reviews aim at challenging the legal reasons supporting the contested resolution.

There are many examples of countries in which extraordinary reviews are used. One of them is the so-called reconsideration review filed against the regional courts’ resolutions and which are solved by the Superior Court of the Electoral Tribunal of the Federal Judicial Power of Mexico. The reconsideration review is used to challenge the judicial resolutions already made on trials filed against the results of elections of both deputies and senators. Such trials’ lawsuits are only admitted when the final resolution can actually modify an election’s result.

Those countries in which the unconstitutionality of electoral courts’ resolutions can be appealed before a Supreme Court of Justice, as it is the case in Argentina, Guatemala, Salvador, Honduras, Panama and Paraguay, provide other examples. The appeals filed before the Constitutional Tribunal of Bolivia and the so-called constitutional electoral review filed before the Electoral Tribunal of Mexico to challenge the unconstitutionality of local electoral authorities’ orders can also be located within this group.

- Exceptional Reviews: Exceptional reviews are those that can be filed to solve quite complicated cases. Such reviews are filed against definitive rulings after new and previously unknown circumstances that can nullify the reasons supporting such a definitive ruling do appear. Article 148 of the Costa Rican Electoral Code provides us with an example of an exceptional review as follows: “An election which has been already declared as a valid one can be challenged nonetheless if new grounds showing the winner’s inability to stay in Office appear”. Article 228 of the Venezuelan Voting Act seems to endorse an exceptional review as well. According to such an article a nullification appeal can be filed at anytime on grounds of the winner’s inability to stay in office or whenever fraudulent actions, bribery or violence during the electoral registration, the elections or the electoral counting have taken place. The appeal will be admitted when from such circumstances or wrongdoings a change in the electoral result can be predicted.

iii) Appealing Procedures: Appealing procedures are legal instruments used to set off a new trial in which the resolution taken in a previous one will be reviewed. The main difference between appealing procedures and procedural reviews can be explained as follows: whereas a procedural review can be seen as an extension of an already existent trial, an appealing procedure is a whole new one. As a matter of fact appealing procedures are derived from the challenge filed against the resolution made in previous executive procedure.

The lawsuits that can be filed against executive orders related to electoral results issued by the Argentinean National Electoral Council are as worth mentioning as the lawsuits that can be filed before the Fifth Section of the Chamber for Administrative Litigation of the Colombian State Council. Other important cases are the so-called “voter lawsuit” in Argentina or mandato de segurança in Brazil, which can be filed against every action aimed at curtailing the constitutional right to vote. The Argentinean lawsuit can be filed before the closest magistrate. The Brazilian lawsuit can be filed before an electoral judge, a regional electoral court or the Electoral Supreme Court. It is also worth mentioning the Chilean case where an appeal can be filed before the Electoral Qualifying Court against the final resolutions made by political parties in an internal way. In Mexico, a couple of trials are worth mentioning. On one hand the so-called inconformity trial, on the other hand the trial aimed at protecting citizens’ political and electoral rights. Both trials are filed before the Superior Court or the regional courts of the Federal Electoral Tribunal of the Judicial Branch. The inconformity trial is activated to challenge every district counting or every state counting. The trial aimed at protecting the citizens’ political and electoral rights can be activated to challenge any violation against any citizen’s right to vote, to be voted, to associate to others, or to be registered in any civic association. In Venezuela the appeal used within the so-called “electoral litigation”, which is filed before the Electoral Court of the Supreme Tribunal of Justice, aims at challenging the resolutions made by the National Electoral Council.

2. Reviewable Resolutions

Broadly speaking, there a two different kinds of resolutions that can be challenged by electoral appeals. On one hand, we find those resolutions related to both the electoral registration and the voter identity; those related to the administration of political parties, which includes, of course, any resolution related to a political party regime and its internal democracy; those related to preliminary activities for the election day; those related to electoral results; those related to electoral procedures different to those aimed at electing representative officials; and those related to any order issued by electoral authorities. It must be clarified that this classification has been made on analytical grounds, and does not match any particular electoral regulation. As a matter of fact, some resolutions related to the electoral registry can also be seen as a preliminary instance of the election day.

a) Electoral Registry and Voting Card

Among all the resolutions within this classification that can be appealed, we can include all those made by the electoral officials in charge of registering voters, issuing ID cards (whenever such cards may have electoral effects) or voting cards (whether such a card includes the voter’s photography or not), building-up the voters’ registry (especially when the resolution unduly approves or dismisses a citizen’s request to be included in the registry) .  

Electoral registries are different to voters’ lists. The system of appeals of the resolution of electoral disputes is aware of such a distinction. As a matter of fact, whereas citizens are authorized to file appeals against electoral registries, political parties are authorized to file appeals against voters’ lists.

b) Political parties regime and their internal democracy

In respect to political parties regimes, we can discriminate among reviewable resolutions as follows:

i) Declaration on the unconstitutionality or illegality of a political party and Resolutions on the approval, denial or nullification of a political party registry. Reviewable resolutions are those related both to the foundation, existence or extinction of political parties and to political parties’ registry. The resolutions that deny, suspend, or revoke a political party’s registry can also be appealed.

Inspired by the German model, articles 15 and 82 of the Chilean Political Constitution empower the Constitutional Tribunal to declare unconstitutional any organization, including of course political parties, as long as such organizations are against democracy as well as against the Constitution.

Broadly speaking, a political party’s dissolution can take place whenever its members legally agree to do so according to the internal regulation of the party itself. Besides, a political party’s registry can be revoked by a judicial resolution issued under the law. There are several legal reasons according to which a political party’s registry can be revoked; one of them is when a political party no longer fulfills the legal requirements to be registered. Among such failures we can find some as follows: to have, at some point, less members than those required by law in order to be registered; to breach in a serious and systematic way specific legal duties; to present no candidates for one federal election (Mexico) or more (three elections in a row in Argentina); to receive less than the minimum percentage of votes required in an ordinary election (3000 votes in Costa Rica, 2% in Mexico, 3% in Bolivia, 4% in Nicaragua, 5% in Chile, 5% in Panama); to gain no congressional seats (Colombia); to undertake no primaries for some time (4 years in Argentina).

In Paraguay, some other grounds to support a political party’s extinction are listed as follows: to organize illegal armed forces; to attack democratic principles set down in the Constitution, the Electoral Code, the Universal Declaration of Human Rights, and other international treaties ratified by the country; to follow the commands of a foreign organization or a foreign government. Likewise, Bolivia revokes the registration of any political party whose participation in a military coup has been proved.

ii) Funding and auditing of political parties’. Any determination taken with regard to a political party’s public funding can also be appealed. Appeals can also be filed to challenge any ruling regarding a political party’s financial auditing process, whether such auditing is made on the source or the application of the financial resources. Financial auditing resolutions are also challengeable if they are related to campaign spending, or to any campaign spending indictment. Any fine derived from financial wrongdoings can also be appealed.

iii) Political parties’ internal democracy. All the Latin American constitutions and electoral legislations analyzed so far set down a system of appeals to ensure a democratic regime to rule political parties. In doing so, courts (electoral, constitutional or ordinary) are empowered to solve political parties’ decisions related to their internal democracies. Appeals can also be filed to challenge any violation committed by any political party or endorsed by any electoral authority, against the civil and political rights of any of its members.    

- Nullity or rejection of non-democratic internal regulations. A majority of Latin American constitutions and electoral laws within the region not only establish democratic principles that have to be followed by political parties. They also allow political parties to determine a structure and a democratic internal regime on their own. Usually, those regulations can be seen as grounding some other political parties’ obligations such as the registration of the party’s statutes or the notification made upon the party’s statutes which has to be notified to electoral authorities and which is normally used by those authorities to review the statutes’ constitutionality and the statutes’ legality.

Usually, electoral courts (courts, councils, boards or juries) are empowered to solve constitutional and legal controversies related to political party’s statutes. In those countries where the rulings issued by electoral tribunals are not definitive, the solving powers are vested in the Supreme Court of Justice or in a constitutional tribunal.

Broadly speaking, any constitutional or legal regulation aimed at ruling the internal democratic regime of political parties as well as any court in charge of enforcing it face a clear challenge: a balance between the right of all members to participate within the party’s administration and the party’s right to organize itself in a free way, must be found. Of course, public powers must be prevented from exerting any kind of intervention within political parties’ internal affairs. However, the party’s members who are entitled to participate at the party’s administration restrict such a basic right.

- The election of political parties’ leaders and candidates. Frequently, political parties have a right to choose leaderships and candidates on their own in a free and democratic way. However, there are sometimes some basic rules and principles that have to be followed according to any political party’s internal regulation.

Among such basic principles, we find that sometimes the electoral authority is empowered to intervene within any political party’s primaries and internal elections. Some other times, courts are empowered to solve the appeals filed against resolutions issued by political parties’ authorities.  

- Punishments and Expelling members. According to due process of law any member of a political party is empowered to file appeals before a particular court (in Guatemala first the courts of appeals and then the Constitutional Court have powers to solve such controversies) against illegal decisions taken by political parties that violate one of his rights, especially the right to associate with others. Whenever a member of a political party is expelled from it, due process of law demands from political parties to allow him to file internal appeals before he does so at ordinary tribunals.

The judicial review of disciplinary rules applied by political parties has not been deeply explored from an academic point of view. However, it can be said that such a review has to be overreaching from a formal point of view and limited from a material point of view.

Disciplinary rules applied by political parties must be seen not only as composing such parties’ right to administrate themselves in a free way, but also as composing the party’s right to free association. Those rights aim at protecting the political party from any unduly interference from any branch of government.

Anyway, all the members of a political party are also entitled to the party’s right to free association and, therefore, they can only be expelled from it in a justified way, otherwise, the affected member of a political party is authorized to file a formal judicial appeal against any wrongdoing whatsoever. Since political parties play a fundamental role in promoting the political activism of citizens and the development of democratic life, they are clearly obliged to protect individual rights.

From a procedural point of view, the court in charge of solving the unfair separation of a member of a political party has to decide on different issues. The court has to decide on the constitutionality and the legality of the regulation applied by the party. Then the court has to determine whether the partisan authority that ruled on the case at hand had powers to do so or not. The court has also to determine whether different rights of the member such as the right to be informed about the charges against him, or the right to a due process were honored or not from a procedural point of view.

Unfairness within a disciplinary procedure means to leave the affected member of the political party with no defense whatsoever. Such a situation would represent a clear violation to a fundamental right.

At first sight, the review made on the content of the appealed decision seems to be aimed at determining whether the grounds on which the party’s decision was made are fair or not, are reasonable or not (such decision has to be proportional, never arbitrary) from both a legal and a statutory point of view. However, such a restriction to judicial review has an exception: whenever the political party’s decision violates at least one fundamental right for the affected member (such as the right to be voted, or the right to privacy or even fundamental social rights), courts can interpret and evaluate all relevant circumstances, even those which were not internally considered by the political party.

c) Preparation for the election day

All orders related to electoral ballots, the candidates’ registry and the composition and location of voting sites can also be appealed.

d) Electoral results

Both electoral results and declarations on the inability of a particular candidate to be elected can be appealed. The validation of the election results and the declaration of winners can also be appealed. In some countries, the appeals filed against electoral results can be filed and must be solved before the final counting, the election’s validation and the declaration of winners ruled by electoral tribunals (Costa Rica, Chile and the presidential election of Mexico) or by a political agency (Argentina) have taken place. Any appeal filed after such events have taken place will not be admitted. For the majority of the systems of electoral litigation, the orders related to declaring winners or validating the election can be appealed after they have been issued. The resolution of such appeals is under the jurisdiction of autonomous electoral authorities or judicial authorities.

e) Other appeals

Many electoral authorities, such as the regional ones, are empowered to both review and resolve the appeals filed against different kinds of elections (the election of municipal authorities, for instance). Even in some federal cases, local systems of electoral litigation are centralized while federal systems of electoral litigation (to solve disputes derived from congressional or presidential elections) are vested in the federal authorities empowered to solve the disputes derived from local or state officials, such as mayors or councilmen (as it is the case of the electoral regional courts in Brazil, the Electoral Chamber of the Supreme Tribunal of Justice in Venezuela, and the Supreme Court of Justice of Argentina which can solve extraordinary constitutional reviews regarding local elections). The Mexican case is an instance of an opposite situation. In Mexico, each state is authorized to organize a system of electoral litigation to solve state electoral disputes. Since 1996, every Mexican state has an Electoral Tribunal whose resolutions can be appealed using the so-called unconstitutionality appeal.

Many electoral tribunals in the region are empowered to solve appeals filed against democratic procedures such as referendum or popular voting. The Chilean case of the regional electoral tribunals is interesting. Such tribunals are empowered to solve the appeals filed against  orders affecting individuals entitled to run for a seat in the regional development councils or in the community development councils. It is also worth mentioning that the Superior Tribunal for Electoral Justice of Paraguay and the Electoral Court of Uruguay are empowered to validate different sorts of elections such as university elections. The Federal Electoral Tribunal of the Judicial Branch in Mexico is empowered to solve labor disputes between electoral authorities and their workers.

3. Who can file electoral appeals?

Within the region, citizens are entitled to file appeals against any determination aimed at including or excluding them from the voters registry and the voters list. Such a right can also be used against a decision refusing the issuing of electoral IDs. Some countries entitle political parties, candidates, district attorneys and electoral prosecutors, to appeal any resolution issued with regard to the inclusion or the exclusion of any individual in or from the voters’ resgistry (Argentina, Bolivia and Costa Rica). Mexico entitles political parties to file appeals against the report made by the electoral authority regarding the final observations made by such political parties on publication of the voters’ registry.

Usually, electoral authorities’ decisions on the approval or denial of registry to a new political can be appealed by other political parties or by citizens.

Appeals against political parties’ statutes can be filed either by their members or by other political parties (when the appeal is filed against a resolution taken by an electoral authority). In Colombia “every citizen will be entitled to file appeals at the National Electoral Council to appeal any statutory provision which is against the Constitution, the law or the National Electoral Council’s resolutions. Such a right will last for twenty days after a decision on the matter has been made.”

Many countries authorize political parties to appeal illegal resolutions issued by the electoral authorities related to them (political associations are also entitled to do so in both Argentina and Mexico). Such countries also authorize political parties to appeal electoral resolutions related to the preparation stage for the election day, to electoral results and to inabilities of elected candidates.

In Argentina, representatives and elected representatives can file appeals against a representative’s election at the political institution in charge of solving them. Senators and elected senators have the same right to appeal senatorial elections. Moreover, the Senate can entitle any individual or any institution to file such appeals.

Some countries authorize their qualified institutions to carry out a review on the lawfulness of electoral results. Other countries authorize candidates to do so (Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, Honduras, Nicaragua, Panama, Peru and Venezuela are among them. In Uruguay candidates are authorized to challenge congressional elections while the appeals on presidential elections are reserved for political parties’ authorities that are registered before the Electoral Court). Some countries provide candidates with an accessory role (Mexico, where they can only file appeals related to candidate’s inabilities, and Paraguay), while others do not authorize candidates to file appeals in an explicit way (Argentina, El Salvador, Guatemala and Dominican Republic). In each case, the candidates’ right to file appeals depends on how developed political parties are. It is also related to the evolution and characteristics of the party system and to the possibility of having independent candidates.

Besides, some countries allow collective lawsuits to be filed in order to appeal either electoral results or candidates’ inabilities to perform their duties (Colombia, Costa Rica, Chile, Honduras, Nicaragua, Peru and Venezuela. Uruguay allows the existence of such lawsuits to appeal congressional elections). Citizens are also authorized to file appeals against such issues. Such an authorization is fundamental to ensure an adequate access to the electoral judicial system for all, even though such openness can result in the filing of too many appeals (even as a political strategy performed either by a small political party or by a political party that is loosing an election). Such openness can also affect not only the preparation stage but also the resolution of electoral appeals, which can then affect the reliability and legitimacy of elections.

Judicial review of electoral issues is free in the majority of Latin American countries. In Mexico, for instance, free access for all to the judicial system is a constitutional right, while Peru taxes the access to judicial review (in Peru it is compulsory to make a deposit to support the appeals filed against a political party’s registration, candidate’s abilities or electoral results. The reimbursement of such deposits will be only derived from successful appeals). Access to a judicial system is related to the common need of making the access to courts even wider as well as to the common need of preventing electoral litigation from becoming an abusive device aimed at affecting the elections’ trustfulness. In some countries, political parties that file completely unsound or malicious appeals have to pay a special tax (Paraguay), while in others, futile appeals produce judicial fines.

Finally, some countries open the appeal processes to others who can be interested in them, such as the electoral prosecutor or the Attorney General who represents public interests (Argentina, El Salvador, Panama and Paraguay).