To guarantee the legality of elections and electoral procedures the law
sets different causes for their nullification (this as a sanction for violating
the law). In doing so it is extremely important that the legal framework
establish the processes clearly. In its
publication, Resolving
Election Disputes, the Office for Democratic Institutions and Human Rights,
made a number of recommendations regarding the invalidation of election results
including:
- The decision to
partially or fully invalidate election results should be assigned to the
highest electoral body. This decision should be reviewable by the highest
body of the judiciary or the Constitutional Court.
- The electoral law
should specify whether the entities vested with the power to invalidate
the election results can take action without being presented with a formal
complaint.
- It should be
clear from the law whether a general invalidation mechanism applies or a restricted
one.
- Both the
preliminary and the final results should be subject to challenges.
Therefore the electoral law should differentiate between the procedures,
deadlines and time-limits applicable to each phase.
- In accordance
with the procedural time limits prescribed by law for publication of the preliminary
and final results and for filing and deciding upon related challenges, all
complaints and appeals should be determined once and for all within a
maximum of two months.
- The electoral law
should clearly state the grounds upon which the election results may be partially
or fully invalidated and.
- The law should
specify the amount and type of evidence required for a review of the
results.[i]
Caution should also be taken regarding the
purposes of such an ultimate consideration as the nullification of elections. Giving voice to the will of the people,
election outcomes should be overturned only in extraordinary situations where
evidence of illegality, dishonesty or misconduct are clear and where it has distorted
the vote outcome.[ii]
Using Latin American countries
as a case study, this section will analyze only the nullification of electoral
results, including nullifying a vote,
one election or the general elections (in electoral law, as in public law, the
violation of a legal regulation does not produce the same effect, it depends on
the consequence established for that sort of legal violation that can lead to
nullity).
According to specific regulations in different Latin American countries,
nullity can be pronounced only as a result of the exact causes prescribed by
the law (for instance: Bolivia and El Salvador). Some systems grant certain
discretion to the revising electoral authority to declare nullity if they
allow, for instance “to file an appeal and ask for the nullification of the
election in reason of actions that have corrupted it”, provided that “the
actions, flaws or irregularities… influence the general results of the
election” (Uruguay), or after regulating in a declarative way the grounds for
nullifying an election in a given voting station or voting site, among which it
includes “any other action that can reasonably alter the outcome of the
election” (Guatemala).
An election can be declared null when such an action can determine the
election’s result or when it causes a clear harm (Chile, Mexico, Panama,
Paraguay, Uruguay and Venezuela). The filing of an appeal does not suspend the
effects of the challenged resolution or action. If no nullifying appeal is
filed within the established deadlines, the corresponding resolution is
definitive. It is important to mention that whenever doubt arises in Ecuador,
the election’s validity will be taken for granted. All these rules are based on
a legal principle according to which public orders and public actions that have
been issued in a valid way have to be preserved. The Latin aphorism utile per inutile non vitiatur refers
to such principle, which is not only particularly relevant for the Latin
American electoral law, but has also been enforced by electoral courts in the
region (Costa Rica and Mexico).
It is worth mentioning that, according to Latin American electoral laws, an
election’s nullity cannot be demanded by whoever has provided the reasons to
support it (Mexico and Paraguay). Such a rule is based on a legal principle
according to which no one can benefit from their own clumsiness. Such principle
is contained in the Latin expression nemo
admittitur aut auditur propriam turpitudinem allegans.
1. Nullifying a Single Vote
All electoral laws that have been analyzed allow the nullification of
single votes.
Broadly speaking, any vote that has been unlawfully issued will be
nullified (Mexico). Many countries set down all the conditions that can produce
the nullification of individual votes. Among such conditions are the following:
the use of unofficial or unsigned ballots; the use of ballots that have not
been signed by the voting station’s officials (Argentina, Bolivia, Peru, and
Venezuela); the partial destruction, mutilation, alteration or amendment of
electoral ballots (Argentina, Peru and Venezuela); the inscription of marks by
more than one name or one team on the ballot (Bolivia, Chile, Peru, and
Venezuela); the existence of more than two ballots containing different parties
to elect one post (Argentina); the intention to enclose more than one ballot in
a single envelope (Colombia) or to enclose a ballot completely different to
those authorized (Bolivia); the inscription or the repetition of names which
are different to those authorized to appear on the ballots (Argentina and
Peru); the unintelligibility of ballots (Colombia); the inclusion of the word
“null” (Bolivia); a candidate’s death, or the substitution of candidates which
has not been done in time (Chile); the substitute candidate has not expressed
his consent on time (Colombia); the voter fails to keep his vote’s
confidentiality (Bolivia); and the voter signs the ballot or leaves any mark on
it which can be used to identify him (Peru).
All the cases already mentioned are different from the case of unmarked
ballots, which is known as the so-called blank vote. Such a difference might be
relevant in those systems that oblige political parties to reach certain
threshold to keep their registry, to access proportional representation, or to
be entitled to receive public funds.
Even though in many countries voting sites have the sole power to evaluate
and nullify an individual vote, without any restriction whatsoever, in some
cases votes can be appealed when there is a serious doubt about the voter’s
legitimacy and identity. Such appeals are resolved by superior agencies
(Argentina and Uruguay).
The nullification of individual votes refers to the votes issued by
individual voters, and affects neither the rest of the votes received at the
affected voting site, nor the general result obtained at that particular voting
point. However, some electoral laws link a significant number of nullified
votes to a potential election’s nullification. Such is the case when more
nullified votes than valid ones are found at a voting site (El Salvador), when
nullified votes represent more than half of a particular election (Brazil and
El Salvador), or when two thirds of the votes received are either nullified or
blank votes (Peru).
2. Nullifying votes received at a
voting site
The reasons that votes received at a voting site can be nullified are
separated into three different groups: irregularities committed during the establishment
of the voting site; irregularities committed
during the voting process; and irregularities committed while counting the
votes or drafting the voting site’s certificate.
a. Irregularities Committed during
the Establishment of the Voting Site
Broadly speaking, any voting site established in an unlawful way can be
nullified (Brazil, Panama, and Venezuela). Improper establishment of voting sites, which are derived from
mistaken appointments of voting site members (Costa Rica, Mexico, and Chile)
must be distinguished from those cases in which a voting site is established in
an unauthorized location and in an unjustified way (Brazil, Costa Rica, Peru,
Mexico and Venezuela).
b. Irregularities Committed during the Voting Process
These kind of irregularities include
the following the electoral registration
of a voting site is forged, unauthorized or altered (Colombia and Ecuador); the
names of the candidates have been mistakenly written down on the ballots
(Colombia); the political parties’ symbols are mistakenly written down on the
ballot (El Salvador and Chile, even though in the latter case, the
nullification will be valid if such mistakes disoriented the voters or affected
the result); the rightful voter was not allowed to vote (Mexico, as long as
such a prohibition affects the final result, and Peru); voters not appearing on
the voters’ register do vote (Mexico, as long as such a prohibition affects the
final result, and Paraguay); unidentified voters do vote (Brazil); multiple
votes by a single voter have been authorized (Paraguay); political parties’
representatives are not allowed to observe the election (Brazil, as long as the
affected party complains about such a situation, Mexico and Paraguay).
In addition, nullification will also
be valid under the following circumstances: When members of a voting site have exerted any kind of pressure upon voters
up to a point which drives voters to abstain, to vote against their will or to
vote without legal formalities (Venezuela); when violence has been inflicted
upon members of voting sites (Colombia, Guatemala, Panama, Paraguay and
Venezuela as long as such violence has altered the election’s result); when
violence, pressure or menaces have been inflicted on voters (Bolivia, Brazil,
Guatemala, Paraguay, as well as El Salvador and Mexico, as long as such
situation modifies the election’s result); when fraud, bribery, intimidation of
any kind or violence to benefit some candidate has taken place (Chile and
Peru); when violence has prevented free and pacific voting (Paraguay); when
voting’s confidentiality has been breached (Brazil and Paraguay); when
falsehood, fraud or pressure upon voters have taken place (Brazil and Chile);
when electoral campaigning or voting have been undertaken illegally (Brazil);
when some authority has used its power or has spent money to curtail voters’
freedom (Brazil); any other action which could have reasonably changed the
electoral result (Guatemala).
Other irregularities committed during the voting process include the
following: when the election day is actually other than the one fixed by
electoral authorities (Brazil, Colombia, Costa Rica, Ecuador, Mexico, Paraguay
and Venezuela); when voting sites are installed before seven o’clock in the
morning and closed after five o’clock in the afternoon (Ecuador); when voting
sites are installed in a schedule different to the one established by electoral
authorities in an unjustified way (El Salvador); when a voting site is either
installed later or closed before the fixed schedule in order to deprive voters
from their legitimate right (Argentina); when voting starts after one o’clock
in the afternoon in an unjustified way or when voters are not allowed to vote
(Peru); when voting starts after two o’clock in the afternoon and less than
fifty percent of voters vote (Panama); when voting is stopped before five
o’clock in the afternoon (Brazil); when voting is carried out in a place
different to the authorized one (Brazil, Colombia, Costa Rica, Paraguay, and
Venezuela); when votes are received by unauthorized persons (Mexico, Paraguay
and Peru); and when serious irregularities affect the election’s clarity and
have determined the final result (Mexico).
c. Irregularities Committed while
Counting the Votes
Latin American electoral laws establish different grounds to nullify the
counting of votes. Some of those grounds can be described as follows: to
undertake the counting in a non-authorized place (Bolivia, Ecuador, Panama and
Paraguay). In some countries (Colombia and Mexico) the counting can be carried
out elsewhere as long as it is justified to do so. In Chile, such a situation
can be considered as fraud. Counting can
also be nullified when violence has been exerted upon members of voting sites
as long as such violence has affected the election’s result (Venezuela); when
it has been performed in a malicious way to help one or more candidates in
order to change the election’s result (Mexico); when there is a difference of
five or more between the number of voters and the numbers of envelopes used
(Argentina); when the actual number of voters is higher than the number of
registered ones (Colombia); when there are more nullified votes than valid ones
(El Salvador); when the number of electoral ballots that have been used is
higher than the number of registered voters at the electoral board (El
Salvador), when the electoral counting has been mistakenly done (Colombia and
Peru); when the wrong counting is derived from wrongdoings (Chile), from
arithmetic mistakes or from plain alterations (Colombia, Mexico and Panama).
Likewise, electoral counting can be nullified when electoral acts are
either filled out or signed by unauthorized individuals, (Bolivia and Panama);
when unauthorized formats have been used (Bolivia and Ecuador); when such
formats are modified or falsified (Panama and Paraguay); when electoral
documents have been destroyed or cannot be found (Brazil, Colombia, and
Paraguay); when signatures of the president, the secretary or at least three
juries are missing (such are the cases in Bolivia and Ecuador. However, in
Bolivia fingerprints are admitted as substitutes); when the president’s
signature is missing (Argentina), and when the so-called electoral bag has been
violated (Guatemala). Electoral counting
can also be nullified when electoral materials are not delivered in time
(Colombia and Mexico) or when the counting memo has not been delivered in time
(Chile).
In many countries, electoral counting is seen as an activity that is
performed once and for all, which means that in many countries it cannot be
repeated (Bolivia and Peru). However, in some places a new counting can be legally
done. Such is the case of Mexico where a new counting must be performed by
district councils when results written down in the scrutiny act of the voting
site do not match those written in that same voting site’s file, when the
scrutiny act contains clear mistakes or alterations, or when neither a file nor
memo can be found regarding one voting site.
It is very important to bear in mind the effects that nullifying the
electoral counting can bring about. First, the nullification of the electoral
results from a single voting site only affects the particular election, i.e.,
it does not affect other electoral results or the electoral process as a whole.
To nullify an election brings about the exclusion of all votes from the voting site from the global counting
of the election as a whole. However, it is possible to imagine that nullifying
the counting of several voting sites can affect the election as a whole.
According to all analyzed electoral laws, new elections have to be organized if
the final result is changed as a consequence of nullifying the counting of
different voting sites.
Some electoral laws express such a command in negative terms, saying that
new elections will not be organized if the final result is not affected in a
dramatic way once the nullifications have taken place (Uruguay and Venezuela).
Other countries express such a command in positive terms, saying that new
elections must be organized when the final result can be modified in a dramatic
way (Brazil, Chile, Ecuador, Mexico, Nicaragua and Panama) or when changes can
be enough to determine whether a political party’s registry is still valid or
not (Panama).
Usually, there are certain symptoms suggesting that new elections are
necessary once the counting of voting sites has been nullified. If the
nullified counting affects more than a half of all voting sites (Argentina and
Guatemala), new elections are needed. If the nullified counting affects more
than a half of all votes (Brazil) or at least one third of the national valid
votes (Peru). In Mexico, nullification thresholds are lower because
congressional elections can be nullified when the counting of at least 20% of
the voting sites (for deputies) or at least 20% of the corresponding federal entities
have been nullified. Such is also the case in Paraguay (20% of voting
sites).
While some countries partially authorize new elections to be undertaken
just in the voting sites that have been nullified or have not been installed
(Chile, Panama, Uruguay and Venezuela), others authorize new elections to take
place as well in the entire electoral districts or states (Mexico).
There is a difference between the nullification of a whole election as a
result of nullifying the results of voting sites, and the nullification of the
electoral results of voting sites that do not affect the election as a whole. The
latter can, however, have some effects such as counting adjustments that can
alter the number of congressmen elected by proportional representation. In
Mexico the nullification of voting site
results can even cause the declaration
of a winner in a congressional race to be revoked. In such a case, a new
declaration will be issued and then delivered to the new winners.
In Colombia, the votes obtained by a particular candidate must be nullified
when relatives of a candidate up to the second grade have worked in the voting
site. In such a case, electoral results are nullified only in respect to the
candidate whose relatives committed such a wrongdoing.
Finally, it is important to note that some countries empower electoral
authorities to order thorough evaluations of the reasons on which a
nullification of a particular election can be based (Argentina, Guatemala,
Nicaragua, and Dominican Republic). In Mexico, such power is reserved to
electoral courts and must be used once many voting sites’ individual cases of
nullification have been accumulated and can support the nullification of an
entire congressional election. In Mexico, such power can also be used to
nullify an entire congressional election when fundamental violations, which can
change the final result, have taken place once and again during the election
day. Such power is based on public interest considerations (which are more important than the interest defended by
contesting parties). Since electoral issues are basically oriented by public
interest considerations, electoral authorities are in charge of its protection.
Public interest is also known as law’s interest, which means that every single
electoral action, and every single electoral process, has to be both legal and
constitutional. As a matter of fact, some Mexican electoral authorities are
even empowered to complete insufficient appeals from both a formal and an
argumentative point of view.
A ground rule in the majority of Latin American countries can be put as
follows: judicial resolutions must me derived from the reasons supporting the
appeal and the defense. No judicial resolution is authorized to analyze more
reasons to nullify an election than those drawn by whoever filed the appeal. A
basic principle of the rule of law demands that judges decide legal issues
based on the so-called legal principles, and one of such principles prohibits
judges to proceed on their own (Ne
procedat judex ex officio); another principle prohibits judges to
resolve procedures which have not been started off by an agent who is
authorized to initiate the judicial
process (Nemo judex sine actore). Other
principles prohibit judges and rulings to go beyond the issues contained in the
case’s file (Ne eat judex ultra petita
partium y Sentencia debet ese conforms libellum).
3. Nullifying an Election
In Latin America, elections can be nullified on three grounds: the election
has been modified as a direct consequence of nullifying the electoral results
of many voting sites; at least a candidate is not subject to be elected; and
the election was not legally undertaken.
a. The Election has been Modified
as a Direct Consequence of Nullifying the Electoral Results of many Voting
Sites
As mentioned above, there is a difference between those cases in which the
nullification of an election affects more than a half of all voting sites
(Argentina and Guatemala), those cases in which more than a half of all votes
are nullified (Brazil), those cases in which a third of the valid national
election is nullified (Peru), and those cases in which the votes are nullified
in at least 20% of either all voting sites or federal entities (Mexico and
Paraguay).
b. Candidates are not Subject to be Elected
Almost all Latin American electoral laws authorize an election to be
nullified when running candidates are not legally qualified to run (Colombia,
Costa Rica, Honduras, Mexico, and Venezuela) or when a candidate has faked the
fulfillment of the legal conditions required to be elected (Nicaragua and
Venezuela).
c. The Election was not Legally
Undertaken
In Panama, the use of violence against voters or the exertion of pressure
upon them is against the law. Such violations, which infringe fundamental
rights, can be seen as groundings for the nullification of electoral results.
In Mexico, permanent wrongdoings committed in a district or in a state, which
can modify the general electoral result, and committed during election day can be used to ground the
nullification of electoral results. In Uruguay, any action which has harmed the
election can be grounds for nullification as long as such harm may change
the entire result. In both Paraguay and Honduras, elections can be nullified
when votes are counted in a mistakenly, maliciously or violent way. In
Venezuela, fraud and bribery are also considered as reasons to nullify an
election, while in Peru, serious irregularities which, according to an
authorized judicial authority can modify an election’s result, have a similar effect.
Brewer-Carías has warned that the
reasons previously analyzed are based on many legal and undefined concepts
(such as “required guarantees”, “substantial violations”, “malicious actions which
have harmed the election”, “generalized distortion of electoral counting”,
“serious irregularities”) which do not support judicial discretional activity (seen as a
power to resolve in a free and prudential way, whatever is more convenient) but
an electoral judicial activity based on good judgment (seen as the way in which
judges resolve legal controversies evaluating all the circumstances around the
case under the law). Judicial activity based on good judgment requires a
technical application of the so-called legal and undefined concepts, which
require from judges a precise application of legal conditions, a legal
evaluation of the case in face of such a condition, and the use of evidence
which has to be in line with the legal condition aims to support the
resolution.
As mentioned above, the nullification of an election by relative majority
brings about the undertaking of a new election. On the contrary, the
nullification of an election by proportional representation does not necessarily result in a new election. In Mexico for instance, if a
candidate does not fulfill the legal requirements to be elected, the election’s
nullification will only affect him and the next candidate in line will replace
him.
4. General Nullification of elections
Few countries authorize a general nullification to take place. If that is
so, though, a new election will be undertaken. As a matter a fact, some
countries explicitly prohibit that scenario (in Bolivia, for instance, neither
general nor municipal elections can be nullified on any grounds; such a
prohibition is based on principles such as filing appeals within deadlines and
validating every single vote).
Some countries authorize a general nullification of elections when the
electoral summoning was not issued by an authorized agency (Panama and
Venezuela), or when the election day is different to the one officially set by
the law (El Salvador). In Panama, general nullification is authorized when
violent acts or pressure exerted upon voters have changed the final result. In
that country a similar effect will be produced by a violation of legal
formalities to undertake elections.
Finally, for the great majority of Latin American electoral laws, filing a
nullification appeal has both a public and a free nature. Peru is the only
exception to this rule. There, the plaintiff has to deposit one hundred
thousand soles at the Nation’s National Bank in order to file the
appeal. Such a deposit will be reimbursed to the plaintiff if the
appeal is successful.
[ii] Robert Dahl
and Michael Clegg, 104.
