Herramientas Personales
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Legal FrameworkOur aim here is to analyze, from a comparative perspective, specific issues related to legal and administrative regulations which can be seen as fundamental for any election which aspires to be undertaken in a free and fair way. We try to develop many different alternatives that can be taken into account to design or redesign the legal framework supporting an election. Such an effort is supported on providing broad and systematic information for those professionals involved in the undertaking of an election based on the alternatives they have at hand. Our goal is to help any reader understand what a legal framework is. In order to do so, different electoral frameworks, different basic alternatives which can be used to undertake an election, different legal devices used to draft electoral regulations and the distinctive features of such regulations are confronted. Bearing all this in mind, three basic questions are addressed in what follows:
OverviewFrom an electoral point of view, “legal framework” has both a restricted and a broad meaning. From this paper’s point of view, “legal framework” is understood in such two meanings. We intend to develop a definition of “legal framework” as broad as possible in order to achieve a detailed understanding of such an expression. A legal framework is the group of legal regulations on the voting rights used by citizens to elect representative officials. However, a legal framework can also be integrated by electoral regulations that authorize citizens to use public powers on their own (using legal devices to achieve legislative goals, to define public policies, to impeach any public officer). Any legal framework, seen as a group of constitutional, legislative, regulatory, jurisprudential and managerial rules, can also be seen as a procedural technique at hand aimed at promoting either representative or indirect democracy. It must be noticed that elections are neither the only way to elect public officials (there are legal and randomly made appointments; besides, elections are also undertaken by collegiate institutions such as corporations’ boards following no electoral laws whatsoever) nor are used to exclusively appoint public officials. As a matter of fact, citizens also use elections to accept or reject legislative bills, governmental decisions or resolutions taken by a public authority (referendum, collective lawsuits and impeachments are used to do so). The “legal framework” topic is integrated by three main categories: preliminary issues, basic alternatives and fundamental components. The first category is also divided into three main subjects. The first of them proposes an electoral overview, which contains a definition of “legal framework”, the subject’s content and the methodology followed to build it up. The second, which refers to guiding principles, makes a brief description of international and regional principles contained in both treaties and covenants and which have to be taken into account when creating or reforming electoral laws. The third subject is built upon a historical and legal analysis about what things have to be taken into account to support a legislative framework. It is worth mentioning that here; a comparative study on different legal traditions takes place. The section on basic alternatives, which have to be taken into account to build up any legal framework, presents a study on political systems and political regimes. Such study explores different ways to organize public powers from a territorial point of view as well as the styles that can be adopted by a democratic government based on the electoral contest of political parties. It also describes both representative and indirect democracies, the legal devices supporting legal frameworks and the creation and reform processes of such devices. The third category explores the fundamental components of legal frameworks. Here different topics are analyzed as follows: electoral systems, electoral administration, district delimitation, voters’ registry, voters’ training, candidates and political parties, election management, counting, the relations between elections and technology and elections’ integrity. Likewise, a detailed study on the different models for the resolution of electoral disputes is undertaken and a classification is derived from it. The place occupied by each single electoral authority within such a classification depends on the place they occupy within their nations. A comparative study on systems of appeals for electoral disputes is also undertaken, and includes a description of deadlines, evidentiary rules and election’s nullification. The final chapter aims at summing up the information in final notes. There, cost-oriented considerations are derived from all the studies. The topic area of “Legal Frameworks” aspires to improve available information, including in it any useful topic and making it more comprehensive and precise. Therefore, this subject pretends to highlight how important the electoral role played by legal frameworks can be. A deductive methodology is used in order to help the reader to have a clear picture of the subject before any revision of contents is set into motion. Readers are benefited because they enter into this document’s main subjects in a more familiar way. A particular section is developed in order to expose the contexts on which both legal frameworks and elections are based. The most important subjects are contained in two sections, which also include many topics that are related to the ACE Project’s eleven topics. The first section aims at studying the basic alternative ways in which an election can be undertaken. There, three related possibilities are analyzed: direct and indirect democracy cases, the existent legal instruments and the processes followed to create and reform legal instruments. This section draws all the options available to design, reform and set down, on legislative texts, an electoral system. The second section, on the other hand, includes the essential components of a legal framework. The study analyzes different topics, which include the electoral system, the relations between elections and technology, electoral management, the resolution of electoral disputes, and some final notes that contain an evaluation of the already mentioned possibilities.
Guiding PrinciplesAny country is free to select the most suitable electoral system. However, such a freedom is limited and has to be established in line to international regulations and principles. Among countries with a colonial history, there is a common trend according to which the revision of legal frameworks brings along an adoption of colonial electoral systems. That is the reason why the revision of any country’s legal framework has to be undertaken in a sensitive way that takes into account each country’s historical, social and cultural particularities. It can be said, however, that a legal framework has to be structured in a way in which principles are included as follows:
Likewise, it is necessary that a legal framework includes effective mechanisms to ensure a full enforcement of the law and a full enforcement of civil rights. Otherwise, punishments must be upheld against any transgression. A legal framework has to contain effective remedies to protect civil rights. The right to vote is a fundamental human right, just as the right to mend or remedy any infringement of this right. Any legal framework has to be composed by as many sufficient and detailed rules as necessary to protect civil rights. Legal frameworks have to endorse the rights of voters, political parties, and candidates to file up appeals before legitimate authorities or legitimate courts to challenge any violation against civil rights. Electoral laws have to oblige electoral authorities and courts to resolve electoral appeals related to violations to the right to vote in an agile way. In order to achieve definitive rulings on electoral issues, electoral laws have to authorize higher authorities to review the orders and resolutions issued by inferior ones. Rulings issued by the highest authorities and the highest courts, have to be enforced immediately. Legal frameworks also have to establish reasonable deadlines within which electoral appeals can be filed up, analyzed and resolved. The rulings on electoral appeals have to be communicated to the contesting parties immediately. Some appeals can be solved with no delay, while the resolution of others can take days. Bearing this in mind, the introduction of some flexible deadlines can be useful as long as the rank of the deciding authority, the nature of the case and the electoral urgency are all taken into account. Many problems can be avoided when appeals are solved just in time. However, some appeals can only be filed up after the election has concluded. The previous ideas outline basic rules that have to be included within the legal framework. Anyway, each country can adopt the most suitable mechanisms for the resolution of electoral disputes. Besides, it can be claimed that free and fair elections must always fulfill basic principles aimed at ensuring universal, free, equal, direct, and confidential votes. Such principles can be listed as follows:
Such principles are usually contained in international treaties and covenants. They are also contained in regional treaties and United Nations’ documents. Among the international instruments that include such principles, it is possible to list some as follows:
The execution of the aforementioned principles in every single country depends on the inclusion of those countries in the international documents. However, the normative guidance delivered by international rules is expected to encourage promotion and support of international rules. When a nation’s legal framework is created or under revision, this nation is bound by the international treaties it has signed. Therefore, electoral rules derived from international treaties have to be upheld and will have even constitutional or statutory rank. Other United Nations’ documents unsigned by a country can, nonetheless, incorporate persuasive electoral standards within the electoral regime of such country. The revision of legal frameworks can also take into account topics such as:
It is important to evaluate the way in which electoral legal frameworks governing a country are in line with international standards. Such evaluation can offer a catalogue of constructive proposals in order to improve and correct legal frameworks as well as to introduce more effective practices aimed at improving the legislation. At the same time, it is important to remember that there are no general models for the execution of electoral rules. Therefore, systems and practices that are applied in one country are not necessarily ideal for another one. ContextThe study of electoral processes is always based on specific considerations of social and political contexts in which electoral regulations are enacted. As any other legal institution, electoral systems cannot be created or adopted in a blind way. Social, political, economic and cultural particularities of each country have to be taken into account to do so. Such conditions have to be on the top of any planning, on the top of any definition of the objectives and the stages that the democratization of each single country has to follow. The starting point for a country, which has overcome an authoritarian regime, is not always the same. While some countries have been democratic (as the Czech Republic), others have never been so, as it happens with those that have just finished a colonial period. The democratization strategy followed in a country characterized by high levels of social development and education cannot be similar to the one followed in a country lacking minimum social structures. Democratization seen as the conclusion of a process suggests that it is necessary to take into account each country’s particularities. Democratization is the final stage of a process that must not to be extended more than necessary. Democratization requires, however, a period of stabilization and a number of successful elections and stable governments to be finished. It is never convenient to rush the undertaking of a democratization process. Any democratization process based on undemocratic institutions and on undemocratic laws will be frustrating. Exaggerated expectations as well as impatient actions are always dangerous. Social and political particularities have to support the adoption of democratization models. There are no bulletproof recipes, but taking into account social and economic particularities represents a reasonable starting point. Such is also the case when the particularities distinguishing judicial and administrative systems, the prestige of legal systems, political parties and political organizations, media and broadcasting corporations, educational level and previous democratic experiences are taken into account. A fundamental component of national particularities can be found in the so-called historical memory: some times, in countries just liberated from dictatorships, electoral preferences are guided by territorial and social facts in an astonishing way. The extension of the right to vote and the evolution of the role played by the main actors in a representative democracy (political parties) are closely related to each other. In their origin, political parties are based on the basic structure of constitutional law. Back then, voting was undertaken to limit governmental powers, and political participation was limited to a small number of individuals (male and adult individuals). At their origin, flexible programs and ideologies ruled political parties. As a matter of fact, personal interests guided the existence of political parties. The evolution of political parties in America has been quite different to the evolution of political parties in Europe. However, both models have tried to export their fundamentals to other regions of the world. The endorsement of the right to vote as a universal right had quite different effects in democratic regimes from those in undemocratic ones. On these days we are witnessing a kind of “democratic wave”, which began in Southern Europe at the end of the seventies and was extended to Latin America during the eighties. Such “democratic wave” has been supported by effective international cooperation and has affected Eastern Europe and Africa. Furthermore, normative designs, the reform of normative designs, and the creation of international or regional electoral systems (European Union, Central American Parliament, for instance), the creation of national (in each single country), state, autonomous, departmental, municipal, or county electoral systems must take into account cultural, economic, legal, social and political particularities which affect electoral institutions and electoral processes. Such a restriction is also imposed to both the execution and the adjudication of electoral laws. An electoral system context can be seen as a group of conditions which are closely related to each other, and which are fundamental for the design, execution and results of such a system, not as a group of isolated referents. Electoral models are not perfect. Besides, different electoral systems can be used to reach the citizens’ aims in a particular place. An electoral system will be an adequate one as long as it fulfills the expectations of democratic development of the political community in which it will be applied, or as long as it facilitates the transitional period or the democratic consolidation of such country. Even though, electoral designs can produce some results, help build-up ruling majorities or represent in a more faithful way the existence of political groups. There are some other non-electoral elements that can produce the existence of non-representative majorities, just as happens with the size of the Congress, the balance of powers between political parties, and the construction of alliances and coalitions, territorial distribution of voters, electoral agreements, and so on. Any democratic project, which aspires to be legitimate, inclusive and viable, has to answer to all the expectations and political ideologies from every single political agent (citizens, political parties, citizens’ organizations, interest groups, and so on), whether such political agents’ opinions are opposite or not. Political agreements, social contexts and contingent circumstances, are important in designing and developing electoral systems. Electoral systems have to be free of turning themselves into inapplicable theoretical postures. However, they cannot violate principles on which free and fair elections are based, which can be listed as follows: the human’s right to vote, to be elected, to hold regular elections, to have neutral electoral authorities, to vote in a secret way, to have an equal access to elections, and to have a judicial review of electoral disputes.
Basic AlternativesDuring the current status of the democratic system development, the different choices of the electoral system are not the only basic alternatives in hand of whom are in charge of designing an electoral law. Also can be considered:
Additionally, indirect elections and semi-direct instruments are admissible as options; however, those limitations to the vote, tending to particularize it instead of been universal, as well as non-competitive unipartidist elections, should not be welcomed. On the other hand, it is important to notice that even taking into account that the juridical tradition over which the legal framework is developed, does not depends on the design of the own framework, and therefore it should not be classified as a basic alternative, its location in this topic is due to its contextual importance. Sub-sections of this chapter:
Different Legal TraditionsThere are certain general categories which outstand from the different legal systems in each country or time. They are shared by a certain group or whole of systems and this makes it possible to identify different legal families. In other terms, from the legal tradition in which each legal system is affiliated we can speak of a legal family. However, a national legal system can belong to a determined legal family and, simultaneously, at the local or “communitary” jurisdiction, a diverse legal system belonging to a different legal tradition can exist. Canada is an example of this situation: its national system belongs to the common law tradition, while the Québec’s province system belongs to the Civil Law tradition. Another example can be found among the different Latin American countries with indigenous population, whose national systems belong to the Civil Law family and, simultaneously, in more reduced territorial jurisdictions, the so called indigenous consuetudinary law is applied in electoral matters as well. Indeed, there are several legal families derived from a common origin or past, from similar institutions, from a language code or shared concepts, from the similarity of the sources of the law, from the community of proceedings and the methods or techniques used by jurists, as well as from the similar philosophical, economical or political principles which inform each legal system. Knowing the family in which each national legal system belongs to is useful to widen the perspective of the institution or the electoral process subject to analysis, as well as to obtain a more informed and reliable approximation and to comprehend the differences between each legal system. Since the study must take into account the family which the system belong to and consider its cultural, economical, political and social contexts, the translation of terminology shall not lack of any criticism or be automatic, whether it is to disqualify a certain legal system or not, when studying, explaining or comprehending a certain country’s or countries’ electoral institutions, instruments, or processes. The Roman-Germanic, Roman-Canonic, or civil law families, have their origins in Roman Law (the Twelve Tables, Corpus Iuris Civile, and Corpus Iuris Canonici) and was decisively influenced by Canonic Law. Also, it was enriched with the contributions of commentators and “post-commentators”, and the work of the Latin-Germanic universities’ jurists. This way the so-called ius commune was formed. Later through codification processes, from which several civil, commerce, criminal or procedural codes were made, passed to the conformation of national laws arriving in the creation of the constitutions. In such family, the development of civil laws and the codification of legal dispositions based on justice and equity was favored. Including the Scandinavian region, Latin America, and several African countries who where Continental Europe’s colonies, the different legal systems of several Continental European nations fundamentally belong to this legal family. During the XI century, in England appeared the common law family. This legal tradition has had a wide diffusion in the majority of the English-speaking countries. It is characterized by the creation of legal dispositions coming from the judicial resolutions. In other terms, the system follows the judicial precedent through which a particular case receives the same legal solution given to a previous and similar case. Therefore, opposite to the families that favor legislative creation, the law is a product of the judges’ labor. Basically, the United Kingdome’s, United States’, some African, American and Oceanic nations’ belonging to the Commonwealth legal system is embraced by this legal family. Most of them enforce English Law and recognizes the monarch of the United Kingdom as Head of State. Since they do not share a common juridical tradition, the religious systems do not constitute a legal family. The only adhesive feature is the religious or philosophical nature of its law, where law and religion are practically synonyms. In the different systems belonging to this tradition, the applicability of this mixture of conduct rules is restricted to certain subjects, such as in Hindu or Brahmanic law, observed in wide regions of India, or Hebrew law, kept by Orthodox Jewish communities spread through many countries. However, there is a large amount of countries whose citizens’ great majority practice the Islamic religion and effectively share legal culture and tradition; therefore it is possible to agglutinate them in the Islamic family. Every area of the law is ruled by the sanction of the State. Its origin goes up to the VII century, time in which Mohamed wrote the Koran, the book where the dogmas and precepts that rule de social and religious organizations of the Islamic people (basically located in Northern Africa, the Middle East, Central Asia and Northern Oceania) are containedPolitical and Governmental SystemsThe legal design, reform, and implementation of an electoral system, whether it is supranational or regional (European Union or Central American Parliament), national (of each country), state, autonomous, departmental, municipal, cantonal, or of a county, cannot disregard the cultural, economic, legal, social, and political reality or context in which the electoral processes and institutions are inserted, not even popular idiosyncrasy. In other words, the application and interpretation of constitutional, legal, and regulatory dispositions, must agree the context. The context of an electoral system is composed not by isolated referents for the configuration, the functioning, and the effects of the system itself, but by a whole of interdependent variables. There is not a unique or perfect electoral model, but different electoral systems used to accomplish the objectives established by the citizenship and political forces at a determined place and time. A system will be adequate when it is fit for the degree of democratic development of the community in which it is applied, or when it is capable of facilitating the community’s transition to democracy or democratic consolidation itself. Even though the design can provoke certain results, such as an easier construction of majorities or can serve to reflect in a more reliable or proportional way the existence of different political groups, the truth is that other factors which are not necessarily derived from technical electoral elements are the ones that can propitiate the existence of the “artificial” or circumstantial majorities. Such elements can be the legislative body size, the correlation of forces among the diverse political parties and its consequent construction of coalitions or alliances, the geographical distribution of the electorate, the electoral pacts or agreements, etcetera. An inclusive and representative democratic project, which is politically viable and with high standards of legitimacy, must consider, and even meet, the different expectations and political ideologies of each and everyone of the political actors (citizens, political parties, citizens organizations, pressure groups, etcetera), regardless of the coincidence, convergence, proximity, or even diametrical divergence of such positions in certain topics of the political agenda. The electoral systems are a product of political agreements. They are the way in which the aggregation of political groups’ interests is shown. Those interests shall not be ignored by juridical operators, except for when they are opposite to the existence of free and fair electoral processes, as it will be explained further. The choice of a concrete electoral model (direct or indirect elections), its development (majority system, proportional representation, or either mixed or segmented) and its characteristics or combination of elements (simple, absolute or qualified majority; pure or impure proportional representation, or with a governability clause), must be a decision based on consent or majority. However, not even the majority’s agreement nor the wide consent shall exclude the minorities’ possibility of representation or voice in the government’s collegiate organs, as it happens in parliaments, congresses or legislative chambers, as well as in plural executive or administrative organs (town or city councils). In order to prevent the electoral systems becoming theoretical, inefficient or inoperative formulas, the political agreement, the social context, and the circumstantial aspects are important. However, those aspects cannot annihilate or proscribe the principles which inform the free and fair electoral processes: The human right of passive and active vote; the celebration of periodical and authentic elections; universal, secret, and equal suffrage; the respect for human rights; the neutrality of the electoral administration regarding other State organs and political actors, and the jurisdictional control of the electoral acts’ regularity.
Territorial Organization of the StateRegardless of the unit concentrating the monopoly of the coactive power it might constitute, some extend of decentralization from the juridical-political power or from the transmission of competences or faculties according to the space or territorial validity of the enforcement of the law is considered, when a State is been design. Thus, it is possible to distinguish among diverse grades of decentralization of such power. From the whole centralization of such faculties in national bodies, up to the absolute decentralization of them in public entities which allows them to create and enforce legal norms in its jurisdiction. In other terms, spatial applicability of the law is not one. Therefore, depending on the territory, there are several creators and enforcers of the legal rules. Among the State, there are national, local, provincial, departmental, regional, autonomic, and eventually, county bodies with a specific and exclusive competence, depending on the form of the State. These competences might be classified among normative, administrative or jurisdictional ones, valid in the whole territory for certain topics (when national) or just in part of it. From a lower-higher perspective and taking into account the different territorial division organization, States can be classified in central or unitary, regional or composed by autonomies, federal, and confederations. Since next to the national bodies coexist local, state or province, and even county authorities, Federal State is one of the most defined grades of decentralization of the juridical-political power. This coexistence implies that all of them are elected by the community, autonomous from each other, and entitled to absolutely function within their own jurisdiction. It is about two different delegated branches of government with equal level, on one hand the federal level and, on the other, the local states level. In the first one, there are whole-territory valid rules, issued and applied by federal bodies and, therefore, made for all the people living there. On the other hand, there are local norms created by local bodies always taking into account the Federal Constitution, which are valid only in some part of the national territory and with a narrow validity scope. Power is not just concentrated on the center, but also in the provinces o local states. They have political, normative, administrative and jurisdictional faculties within their own jurisdiction. The distribution or decentralization of the political power attends to a centrifugal theory. This feature does not imply that the State should not be considered as a whole national federal State. Even taking into account that certainly national or federal Constitution, as well as national or federal authorities (legislative, administrative and jurisdictional) exist, there are also local states Constitutions and authorities (legislative, administrative and jurisdictional) which, definitively have to adjust to the federal Constitution containing all the principles and fundaments of the federal or national State. These features appear on most of the federal States. However, there might be some faculties reserved exclusively to the federal authorities like, for instance, the justice administration. Some examples of federal States are Germany, Argentine, Australia, Brazil, the United States of America, Mexico, Nigeria, and Venezuela. On the other hand, the Regional or Autonomic State is a form of organization of a national State, through which certain public, executive, as well as normative functions correspond to “the depending territorial bodies”. This way, some nations as Belgium, Spain, Portugal, and Italy, have developed regions with a constitutional guarantied self-government, which, from a narrow point of view, does not match the rest of the local States of a federal State, or the territorial minor bodies of a unitary State. Through the national Constitution, there are some central authorities in this State, entitled with some side faculties. Nevertheless, without implying that this can be considered as a faculty to design their own Constitution, there are some other regional, territorial or provincial authorities with express faculties and legislative autonomy. Also, they do not have a representative chamber with territorial interests protection aims, nor participate in the constitutional amendment process, nor have any recognized attributes in the jurisdictional ground. Due to the monopolization of the power as well as of the exercise of faculties that characterize the public dominion by some national authorities, within the so-called central o unitary State, political power is completely centralized. Every person situated beneath that sovereignty obeys the same and only central or national authorities and thus, they are subject to an only constitutional regime and to the same laws. However, some degree of faculties’ decentralization in favor of the local, regional, departmental or county collectivities is not incompatible with the unitary State. Nevertheless, due to the fact that it is the central authority the one that concedes and supervises the exercise of such power, full autonomy is never reached. Since a national authority accumulates public power, it can be said that it attends to a centripetal theory. Bolivia, Colombia, Ecuador, and France are some examples of unitary States. Nevertheless, there is another model of organization of the State: the confederated States, to which, the confederation of States, have recently joined. Switzerland is located among the first ones. There, the preservation of freedom, sovereignty and independence of the confederated entities before the national Authority strengthens the level of autonomy. Also, the entities are equal among each other and, therefore, they have the right to separate from the confederated State in any moment. On the other hand, the confederation of two or more national independent States is aimed to satisfying economical demands from their components. It is regulated basically by international law thorough treaties or agreements like in the paradigmatic case of the European Union. It is based on the interstate cooperation and coordination principles, as well as on the integration of communitarian or union and states body of laws. Besides from the mainly economical and commercial topics, some other spaces in which the confederation is hold are the ones related to the exercise and infrastructure of communication, as well as cultural, scientific, technological, assistance and sanitary integration, among others. Even though there are communitarian and national bodies with diversify competences, the communitarian bodies can issue rules with direct efficacy within the internal national States body of laws. In some other cases, a previous selection and adoption of some internal acts is required. In other terms, what distinguishes a federal State from a central or autonomic one is the decentralization degree. And between those and the international of States, the difference is that the first ones find their legal fundament in the national body of laws, while the confederation of States is based on international law ruling. Since the authorities to be elected, as well as their regulatory legal framework, depends on the model of the State, it is necessary to take into account the diverse forms of organization that it can adopt. Within a federal State, it can be found federal (executive body representative or president and legislative body, normally with a higher and a lower chamber), local, and state or province authorities. These authorities will be declared through electoral processes ruled, in each case, by different laws which also contain the institutions in charge of the preparation of the election, as well as some others in charge of solving the electoral dispute resolutions both, local and federal, but always attached to bases or principles established in the federal Constitution. However, this is no obstacle to let a central body organize the elections and a different one, also national, solve the disputes arise from the local, federal, and even at the county level, electoral processes. Central authorities in a unitary State design the legal framework for the election of the own national and, if such is the case, departmental and local or provincial authorities. Although there can be some local authorities responsible for the administration of the local electoral process, in a regional or autonomic State, the ruling to which the institutions as well as the national and local electoral processes should stick to is established by the national authorities.
Democratic Political GovernmentThe contemporary classification of government forms distinguishes, basically, two main categories: The European parliamentary system and the American presidential. From the organization of each of the state powers, the relations among them and the form in which they are connected, fundamentally the executive and the legislative, it can be distinguished between one form and another. The presidential system arises in the American Constitutionalism and is characterized for: a) the executive power is unitary, given that it concentrates the figures of head of state and head of the government; b) the president is elected by the people and not by the legislative power, which gives him a greater autonomy regarding the last one; c) the president freely appoints and removes the members of its cabinet, state secretaries or ministers; d) neither the president nor the state secretaries and ministers are politically accountable in front of the congress; e) the president, the state secretaries, ministers, and members of the cabinet cannot be members of the Congress; f) The president can be affiliated or militate in a different political party than the Congress majority, and g) the president cannot dissolve the congress nor the congress can give a censure vote to the president. The parliamentary system comes from the political evolution of a great number of European countries, specially England’s, and is characterized by the following: a) the members of the cabinet (executive power and government) are members of the parliament as well; b) The cabinet is conformed with the heads of the parties which by coalition form the parliamentary majority; c) The executive power is divided among a head of state with representation and protocol functions, and a head of government who handles the administration and government itself; d) In the cabinet there is a person identified as the prime minister, with great political influence in the government; e) the cabinet’s subsistence is guaranteed through parliamentary majority’s support; f) the public administration is commended to the cabinet, under the parliament’s constant supervision, who can demand political accountability to the government; g) there is a permanent inter-organic control between the parliament and the government, and h) while the parliament can deny a vote of trust or can give a censure vote to the cabinet, under which the last one would be bind to resign, the government can ask the head of state to dissolve the parliament. In addition, another form of government can be shown: the dictatorial form of government is the one in which the dictator or autocrat uses its attributions from his own authority and not by temporal delegation. It generally derives from institutional crisis in which there is a general belief that the existent powers of the government are not capable of handling the situation. It can also be originated by plebiscitary processes, or by armed movements and coup d’ etat. The first ones establish governments with charismatic leaders; the last ones establish praetorian dictatorships. The dictatorial government tries to consolidate its support by penetrating in a great part of the community’s life, through the organization of a unique party and propaganda, or through a military apparatus. Dictatorship could create a totalitarian state. It is important to have reference of the form of government (presidential, parliamentary or dictatorial) in order to determine de viability of institutions’ and electoral processes’ legal design. This, for that representativity and functionality are guaranteed in the electoral system, as well as governability in the political one. Of course, it makes sense to face the technical aspects and the cultural, economical, political and social contexts, in regards to presidential and parliamentary forms of government.
Political Parties SystemThe parties system is the whole of parties in a certain State and the elements which characterize its structure: the number of parties; the relations among them, considering their magnitude as well as their relational forces, and, in third place, their ideological and strategic locations, as elements to determine the ways of interaction and the relations with the context in every scope. In attention to the number of political parties existing in a given political system, it is spoken of multipartidisanship, bipartisanship, or unique party. As it has been said before, regarding dictatorial or totalitarian forms of government, it can be spoken of a unique party system (as it happened in the fascist regimes, of Communist China or the Soviet Union) which is not about institutions derived from a democratic process, but structures for power preservation. The bipartisanship (as in the United States and England, for example) is identified as derived from an electoral system based on a majority principle, while the multipartisanship system (such as in Germany, Belgium, Finland, The Netherlands and Switzerland) is identified as an effect from the proportional representation system. This reductionist way of analysis establishes a line of connection between fragmentation (multipartisanship-proportional representation) and polarization (bipartisanship-majority), which has made to consider that either one system or the other contributes to the crisis and lack of stability of the democratic system. Other criteria disregard quantitative typology in order to favor competition or not within the party system. Legal InstrumentsA legal framework is always fundamental. Legal norms are mandatory and determine how the regulation of an electoral system works. Legal devices provide electoral actions with certainty and security. Within democratic and constitutional regimes, electoral issues are legally regulated by a diverse and coordinated legislation derived from a fundamental norm, or by a Constitution. Such instruments can be listed as follows:
International TreatiesExperts debate whether constitutions or international treaties have to be seen as the highest norm of a particular legal system. However, a compromise has been reached according to which some topics contained in international treaties, such as the protection of human rights (including of course political and voting rights which are part of the so-called “second generation” of human rights), have to be included within any nation’s legal system. Otherwise, such a nation can be seen as unconstitutional and undemocratic. International treaties, which are now mandatory for more and more countries, have promoted and consolidated political and voting rights. Among such treaties, some can be listed as follows: the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the American Convention on Human Rights (also known as the San Jose Convention), and the Convention on the Political Rights of Women. International documents are an important source of electoral law. It is impossible to underrate the high number of international covenants, resolutions, charts, declarations and reports related to human rights in general and to political rights in particular. Many important rules are derived from international documents. For instance, every democratic country has to vote the appointment of its representative officials. In the same line of reasoning, international documents enhance the importance of international observers in electoral processes. International documents are regulated by specialized rules of international law. However, treaties in particular have to be adopted by national constitutions. National constitutions must see international treaties as producers of national laws, as higher regulations, as mandatory norms. Ordinary legislation and regulation have to detail both the content and procedural issues established by international treaties. According to some rules derived from the Vienna Convention on the Law of Treaties, (1969), there are three main principles regulating this topic: a) Every treaty bounds the states which approved it; b) No State can be bound by a treaty which has not been approved by it; and c) Convened obligations are based on the consent of the states. International treaties are so important in the world that it is very difficult to think of a national rule or constitutional norm (particularly in the field of electoral and political rights) that can oppose them. Democratic constitutional states do recognize and adopt international documents in their internal legal system. ConstitutionThe main rules governing an electoral regime have to be established at constitutional level. Under such scheme, inferior regulations must be enacted in order to develop constitutional rules’ content and application. Nowadays, there are no clear rules to follow in order to know which topics have to be included in the Constitution. Such a decision depends on many different conditions prevailing in every single country. Anyway, some of the topics commonly set down by constitutions are basic rules on the form of government, on how representative agencies must be integrated, on fundamental rights as well as on the legal devices which can be used to protect them, on the main principles governing the electoral system, on the main features distinguishing voting, on the existence of political parties and their internal regime (including topics such as funding, for instance), on the existence of electoral authorities and electoral courts, an on the kind of procedural rules that have to be followed. According to the level of complexity of the rules used to reform the Constitution, and even though constitutions are usually intended to last for long periods in order to deliver certainty, rigid systems are distinguished from flexible ones nonetheless. Some fundamental principles which can be included in the Constitution in order to ensure the undertaking of free, authentic and periodic elections in every country can be listed as follows: the right to vote is universal and has to be used in a free, secret and direct way; elections must be organized by an autonomous public agency; elections must be undertaken in a legal, independent, impartial and objective way; candidates and political parties must have an equal access to the media; every single electoral order has to be judicially reviewed in order to confirm its constitutionality as well as its legality. A constitution must be seen as the main legal norm of any state, which implies that it is not only mandatory, but has to be enforced and honored as well. Electoral rules set down by constitutions are not an instance of wishful thinking, but legal norms that have to be obeyed by constitutional and democratic regimes. Likewise, since the constitution is the highest law within legal systems, it validates all the other norms within such legal systems. Constitutional rules and constitutional principles cannot be violated or ignored by non-constitutional norms. Any constitutional violation perpetrated by unconstitutional norms is null. There are all different sorts of electoral authorities. However, constitutional autonomous institutions have often been established. Such institutions are usually the highest electoral authorities and are completely independent from any traditional branch of government. In our days, the creation of constitutional tribunals has been privileged. Such tribunals have been empowered to directly interpret and adjudicate constitutional law. Bearing this in mind, since electoral topics have been constitutionally recognized, not only the creation of constitutional tribunals which are specialized on solving electoral disputes, but the extension of the powers of traditional constitutional tribunals to do so, seems to be reasonable. Federal systems work under a double-leveled scheme. On one hand, federal constitutions develop the electoral topics that we have referred to for the federal level. On the other hand, even though states must use their legislative autonomy to enact electoral laws, they must nonetheless follow all electoral principles set down by the federal Constitution. The inclusion of electoral topics in the Constitution does not mean that a new constitutional document has to be enacted. Such an addition can be undertaken enacting some strategic and specific reforms. Electoral Laws and Acts
Electoral law is the legal instrument used to develop the majority of electoral topics that are relevant for a nation (especially in the case of those nations following the so-called civil law tradition). Electoral laws are enacted by ordinary legislators (legislative branches of government, chambers, congresses, assemblies, parliaments) in order to develop the general principles established by the Constitution. Usually, since electoral systems have to be legitimate, strong, and permanent, electoral laws have to be enacted by at least a two-thirds majority of congressional members. There is neither a model to follow in order to enact electoral laws, nor a recipe to follow regarding their contents and structure. In some countries, for instance, electoral laws are contained in a single piece of legislation (code or statute), while in others, many codes or statutes contain electoral rules in a specific way (in such cases, there are specific codes to regulate electoral authorities, political parties, systems of appeals, an so on). Under the Constitution, electoral laws can regulate electoral topics as follows:
Countries that have constitutional tribunals can also authorize electoral laws to be challenged on constitutional grounds. The highest court of the nation will be empowered to decide on such disputes. Usually, major changes to electoral laws cannot be undertaken if the electoral process is about to begin. Such a prohibition aims at preserving political stability and legal certainty. Electoral laws cannot be enacted to detail electoral regulation related to specific, concrete, administrative or internal issues of electoral authorities. Such regulation must be contained in other normative devices such as executive orders.
Administrative RegulationsAdministrative regulations are issued by electoral authorities to regulate specific managerial issues in an agile and simple way. Such regulations are more flexible than legislative procedures. During elections, a lot of managerial issues have to be solved in an urgent way within short deadlines. Electoral laws do not have to regulate such topics, which, by the way, can change one election at a time. Administrative regulations complement electoral laws, and they have to be issued by electoral authorities in charge of undertaking elections from an executive point of view. Electoral authorities empowered to overview electoral actions have to review the regulatory amendments. There are many electoral structures empowered to undertake such a task. Usually,, such structures have to be independent, permanent, and transitory. In countries with independent electoral authorities, such authorities are empowered to issue administrative regulations. The aim in those countries is to prevent the existence of insufficient regulations. Administrative regulations allow electoral authorities to regulate specific topics such as how political parties have to file their reports, how to handle candidates’ registry, electoral campaigns, electoral advertisement, the election day, and so on. Judicial PrecedentsJudicial precedents are essential in the integration of the electoral legal system. Such a claim implies a very important change: electoral disputes are no longer solved exclusively by political authorities but also by judicial ones (on one hand, there are some cases in which the resolution of electoral disputes is carried out at the courts; on the other hand, some other cases can be seen as instances of mixed systems in which both political and judicial authorities play a role in solving electoral disputes). Political authorities used to solve electoral disputes by means of political criteria. Now electoral disputes are solved by special electoral courts, which sort out disputes using legal criteria). Electoral litigation has been judicialized and the rulings issued by electoral courts and electoral judges (which can be seen as judicial precedents) have become capital to understand what electoral law is supposed to be. In common law systems, judicial precedents can be seen as the origin of the law (on the contrary, in civil law systems, enacted law is seen as the origin of the law). According to legal concepts such as stare decisis or ratio decidendi, the reasons supporting previous rulings have to be taken into account to solve new and similar cases. Electoral law is defined not through codes and statutes, but through judicial opinions. In common law systems, electoral courts are very important. Such courts deliver a fundamental contribution to build-up the legal system. Judicial opinions (seen as judicial precedents) produce the law; electoral judicial opinions (seen as precedents) produce electoral law. The so-called English system or ordinary litigation system empowers judges at the judicial branch of government to solve electoral disputes in a definitive way. Their definitive resolutions can also have the power to put an end to a sophisticated system of electoral appeals (which can be either administrative or political, as previously explained). It is clear that for non common law systems (which are usually known as civil law systems), judicial resolutions of electoral disputes are also important. Electoral judges in civil law systems have also made important contributions, which have strengthened and developed electoral law. In those countries, judicial precedents issued by electoral courts have to be used to solve new cases. Judicial resolutions of electoral disputes are so important that in some cases they also decide on the constitutionality of executive orders issued by electoral authorities. When electoral resolutions do so, they can be seen as constitutional courts delivering constitutional interpretations. Those who are authorized to establish mandatory precedents are the highest courts. Precedents are established following some formal requirements such being reached through unanimous or composed decisions. Judicial precedents (usually known as jurisprudence) are established through repeating the use of one ratio decidendi to solve more than one case. Such cases have to be similar in order to be solved using the same ratio. The highest courts’ resolutions on opposite judicial opinions, which have been upheld by different courts, are also helpful to establish judicial precedents. Usually, judicial precedents can only be interrupted or revoked by grounded and justified decisions of the highest judges. How far do judicial precedents and judicial opinions can reach? What are their effects? Who are the authorities bound by them? There are restricted legal systems within which judicial opinions and judicial resolutions are constrained to resolve the issues contested in each single case and which are mandatory only for courts and judges. However, there are also legal systems within which judicial opinions and judicial precedents can have general effects (erga omnes) and far reaching powers not only affecting every single authority but also nullifying enacted legislation. Electoral Authorities Executive OrdersElectoral authorities are empowered to issue executive orders aimed at regulating electoral issues. International agreements between electoral authorities (whether administrative or judicial) of different countries have been very useful to set down international cooperation and shared academic, publishing or research projects, all of which have been undertaken through high-profile conferences, seminars, congresses, workshops and publications related to electoral topics. International agreements signed by electoral authorities do not have the same legal status than judicial resolutions. However, they are also important because they do bind the signing countries in a formal way. Once an electoral agreement has been reached, rights and duties are produced and common efforts should be performed to tackle the agreement’s objectives. International agreements (including non-electoral agreements) can be seen as a particular way to create electoral law within a general framework demanding global solutions for global problems. International agreements must be signed by authorities authorized to do so. They must also be in line with preexisting legal rules. Unconstitutional or illegal agreements are all null and void. Agreements violating the rules set down in other agreements have to be considered null and void as well. In federal systems, electoral agreements have been reached by authorities of different levels (the federation, the state authorities and the municipalities) and have been useful to solve electoral issues involving them (especially managerial issues) in a cooperative way. Such agreements have benefited the electoral know-how and the efficiency regarding the following topics: management, electoral training issues, the common use of the voters’ registry and voting IDs (all of which, expensive, huge and technologically complex matters, are commonly developed by federal electoral agencies and contractually transmitted to local agencies which apply them in local elections). Codes of ConductThe expression “codes of conduct” can refer to many different things. Therefore, it is convenient to exclude three instances of such an expression from the outset. Those three instances affect not only electoral agents, but also elections’ undertakings and cannot be seen as codes of conduct legally included within electoral processes:
Which are the main features distinguishing a code of electoral conduct? In our point of view, there are at least two that can be put as follows:
There are many differences bringing the two of them apart from each other. Such differences are based on their distinctive features and on how strong the obligations derived from them are. Political parties can draft codes of conduct, which can include international organizations among their signers. Codes can be promoted by electoral authorities. Now, codes of conduct promoted by electoral authorities can face a fundamental challenge, which can be put as follows: can codes of conduct be mandatory? From a speculative point of view, codes of conduct have to be voluntary. Some interesting conclusions can be drawn from some studies, though:
A majority of codes of conduct have been consented, though. They do not prevent any punishment whatsoever if someone fails to honor them. Such situation can be considered as integrating the normative dimension of an electoral process. Anyway, it must be said that effective codes of conduct do regulate very important issues and they tend to become mandatory. Regarding the codes’ content, it can be said that they are rules aimed at:
A majority of codes of conduct promote cooperation between electoral authorities and usually impose periodical meetings. However, they do not empower electoral authorities to interpret them, nor to execute them. Creation and Amendment ProcessComparative law shows how the enactment of a new electoral law is derived from extreme circumstances in which political institutions are afflicted by a serious crisis. The most frequent case is the one in which a transition from an authoritarian regime to a more democratic one is taking place. In such a case, the enactment of electoral laws is necessary both to legitimize and to put the situation under control. A distinction must be drawn between:
The difference between the creation and the reform of electoral laws is based on pragmatic reasons related to how each one of those processes is undertaken.
Creation StrategiesAny country going through a democratic transition has to develop a strategy on its own. Such a strategy can follow one out of two available routes. In the first one, the importance of a new electoral law is fully evaluated as well as the impact of such an option in the legal system. Political parties debate the proposal in order to reach a sound understanding about it. From a comparative point of view, it can be said that the most successful cases are those in which a multi-party commission is empowered to draft the new law. A broad consensus opens up the most desirable route to begin the electoral process and the democratic transition. However, we understand that this option has some setbacks with respect to the first elections organized at the beginning of the transition period. Some of such setbacks are worth being mentioned:
The second route available would be to adopt a strategy aimed at shortening the legislative process. In such a case, the government usually decides to modify existent laws. Experts are commissioned to work on the matter using international support. This strategy can face some setbacks, though:
Bearing all this in mind, a third strategy can be explored as follows:
Gradualist strategies are derived from the political dialogue and the compromises reached between governments and minorities and can be more or less explicit. The more explicit such dialogues are, the more legitimate they become. Problems in Amendment ProcessUsually, electoral laws in consolidated democratic systems have a two-folded and inconsistent nature.
Such a situation is consistent with the permanent, technical, minor and procedural changes afflicting electoral laws. Among the reasons supporting the basic continuity of electoral systems, some can be mentioned as follows:
Nonetheless, minor reforms to electoral laws are frequent. Electoral laws in both new democracies and consolidated democratic systems are constantly reformed, constantly adjusted. Essential ElementsThe study of electoral processes can be divided into eleven similar groups from legal point of view:
Any reform to the legal framework ruling elections has to take into account the conceptual groups previously analyzed. The components of such groups will support the government’s integration and the election of public officials. Such secondary topics not only strengthen but also help out to undertake the elections. Sub-sections of this chapter:
Electoral SystemThe Electoral System is an essential component of any legal framework, because such a System defines the integration of elected public offices and the relation between the political parties in a country, in a State, or in a group of countries. Broadly speaking, an electoral system can be defined as the regulation of the election of public officials. In a more constrained definition, an electoral system can be seen as the regulation of the relation between voting and the elected officials. An electoral system is, therefore, the way in which votes can be turned into elected representatives, and their political content is, therefore, rather clear. Such regulations can be seen as the enactment of very important legislative decisions. The design of an electoral system, seen in a more restricted way, refers not only to practices of parliamentary systems, but also to practices of both presidential systems and constitutional monarchies. In respect to the election of public officials, the selection of the electoral system is important. If the electoral system follows the majority principle, then the candidates who have more votes are declared the winning ones. On the contrary, if the winner is elected in a second round out of the winner of the first one and the runner-up, or if the winner is elected in an indirect way (as it happens in the United States), the results can be quite different. Besides, electoral systems not only involve the way in which votes are turned into congressional seats, but can also affect other components of the political system (such as the development of a system of political parties, the separation of political ideologies, the representation of diverse social interests, the main features of electoral campaigns, the ability of political regimes to provide individuals with working political institutions, and the political system’s legitimacy. Electoral systems can also be important linking citizens to their leaders (through some mechanisms such as accountability, representation and political liability). As a matter of fact, electoral systems do generate important consequences for democratic governance in the long run. Incentives must be brought along to help out those contending for power to summon voters in different ways, according to the socio-political reality (in societies deeply divided by languages, religious beliefs, racial or ethnic considerations, an specific electoral system can promote and praise cooperation and conciliatory attitudes from candidates and political parties, while punishing those who are neither cooperative, nor conciliatory). Electoral systems have to be based on Constitutional Law and other Legislation. As we have said, electoral systems’ design determines the ways in which votes are turned into public offices. In other words, such a design determines how voting affects political representation. That’s why an electoral system’s regulation begins at the constitutional level, and continues at the legislative one. A couple of characteristics distinguish the fundamental components of an electoral system (on the one hand, they affect the way in which votes are turned into political representation; they can be distinguished from others according to the political decisions which outline each one of them). Bearing this in mind, it can be said that the fundamental components of an electoral system which have to be included in electoral legislations can be listed as follows:
The election of an electoral system has to be inserted within a legal framework which regulates the social structures and the political differences in an adequate way. Such a regulation must organize a representative political system in charge of solving social disputes through conciliation. It can be said, therefore, that the selection of an electoral system can be undertaken more easily if particular objectives are selected from the outset (a greater degree of legitimacy, for instance, or results’ proportionality, or a strong representation of political groups at a regional level, and so on). Based on such considerations, and taking into account the social, political, geographic and historical conditions of each single country, electoral systems have to be selected. The selection of an electoral system is a very relevant decision from an institutional point of view. Such a decision is very important to a satisfactory performance of any democracy. Electoral systems can help out not only to build up specific results, but to promote the cooperation and conciliation of divided societies. The selection process of an electoral system supports the electoral legal framework. The application of a specific electoral system in each country can have a relevant impact in the electoral performances of political contenders. The evaluation of a country’s electoral system can be based on the results rendered by previous elections. Doing so, can shed some light on important issues such as what benefits, if any, are received by the political party in power if compared to other political parties. Some light can also be shed upon the system’s components which can be seen as distorting international regulations or the election’s results. No electoral system can be universally applied to all the cases. Nor a universal norm can be applied to all cases. The selection of an electoral system has to aim at clear objectives, and has to be seen as an ad hoc decision. The effects derived from the operation of electoral systems are contextual and are based on political and territorial particularities, as well as on different social realities and specific conflicts which differ from one country to the other. The general consequences of every single electoral system depend on contextual conditions distinguishing each single case. The revision of an electoral system has to take into account whether the country is deeply divided or not from a political, geographical, religious, or ethnic points of view. It has also to take into account whether political minorities are fairly represented in the political system. The revision of an electoral system aimed at improving a country’s electoral regime, has to take into account the recommendations derived from the experiences undertaken by other countries on how inequalities have to be solved. Electoral ManagementElectoral management is fundamental and has to be taken into account to design a legal framework. The more successful an electoral management can be, the more successful the election as a whole becomes. To achieve an efficient and efficacious electoral management some requirements have to be fulfilled as follows: first, electoral legislation has to detail every single phase, stage, activity, and procedure in order to prevent any mistake or illegality; secondly, electoral authorities have to be designed according to the country’s or the region’s political and social particularities. Such authorities must have institutional powers to perform their duties under the general principles ruling electoral processes: certainty, legality, independence, impartiality, and objectivity. The efficient and efficacious performance of electoral management can be seen as a fundamental component of any election. Bearing this in mind, the ideal requirements that electoral authorities have to meet are further discussed under the title Electoral Organization and can be summed up as follows:
Usually, trust is linked to power. Therefore, the lower the public confidence on public institutions, the stronger electoral authorities become. Such a situation is not the case for consolidated democratic federations. As a matter of fact, electoral managers can be grouped as follows:
The effectiveness and trustworthiness of an autonomous electoral authority is based not only on the existence of sound finances, but on the existence of impartial and independent employees working for it. The management of democratic elections requires independent and non-partisan electoral authorities, which are free from any kind of political bias. This a fundamental issue, especially for countries in which a democratic regime is not still consolidated. There electoral managers takes and executes important decisions which can affect the electoral results. Therefore, specific political conditions have to be taken into account to determine who is going to be in charge of electoral management and what kind of institution will be empowered to do so. Such legislative decisions have to determine both the size and the integration of electoral authorities. Such legislative decisions have to determine who will be appointed and how the appointments and the firings from such appointments will be done. All such topics determine the performance of electoral authorities. The integration of electoral authorities has to take into account considerations as follows: Structure The managerial structure has to include a higher electoral agency whether central or national. There can be some inferior agencies at state or regional level. According to the extension of electoral jurisdiction and to the extension of communications systems there can even be district electoral agencies. Intermediate electoral agencies can exist as long as the respective electoral system, the geographical situation and the demographic density of the country make it possible. Anyway, it is convenient to prevent a widespread creation of trivial electoral agencies. Trivial and unnecessary electoral agencies have a straightforward effect: they do increase electoral spending. The electoral structure is organized around voting points. Voting points are the core of any electoral structure. A fundamental task for the legal framework is to define in a precise and clear way who will integrate the voting points, and how they relate to headquarters and to other electoral authorities. The legal framework also has to set down what kind of relations voting points will have with governmental authorities on election-day. Powers and accountability Electoral authorities’ powers and accountability has to be legislated in a clear way. Such legislation should include topics as follows: structure and composition; how legal duties will be accomplished; how many officers are needed to open electoral authorities for business; voting procedures; public relations; due process considerations regulating the execution of legal powers. Composition requirements As long as it is possible it is recommended to appoint professionals who know the legal framework ruling the election’s management. Usually it is required that at least some of the individuals integrating electoral authorities are legal professionals. Some problems affecting inferior electoral authorities can be derived from such a reasonable requirement. Electoral authorities integrated by political parties’ representatives can also produce some setbacks. Both the independence and the impartiality of electoral authorities integrated by officials or judges appointed by the ruling party can be jeopardized. A reasonable solution can be found in those cases in which political parties are empowered to express their opinions before the electoral authorities, with no power to play a role in solving electoral issues whatsoever. The appointment of honorable political agents such as non governmental organizations and members of the Judicial Branch of Government to occupy electoral Offices, are usually a good option. Terms Electoral authorities have to be permanent. In some countries they are open for business during a period of time. However their permanent work is necessary when they are in charge of the voter’s registrar. In such cases, the permanent activities of electoral authorities have to be legislated. A voters’ registrar has to be up and running for every single election. Usually inferior electoral authorities, as those in charge of small electoral territories or those in charge of voting points are not permanent, they are open at the beginning of electoral periods and are shut down once the final results have been validated. Electoral organizations should better be partially renewed. It is not very wise to renew electoral authorities once and for all every single time. As a matter of fact, experience can helps us to raise the institutions’ productivity. All the procedures and fundamentals supporting appointments and impeachments have to be legislated in order to immunize members of electoral authorities against any sort of political pressure. The electoral officials’ wages must not be cover by the government. Some countries grant immunity to electoral officials to perform their duties. Funding Electoral authorities have to be inaugurated and composed before the election takes place under the law. Besides, they have to be provided with an adequate funding to perform their duties. Legal frameworks have to include clear and objective rules on how permanent activities of electoral authorities will be funded, in order to prevent budget to become a political tool which can be drawn by a Parliament, political parties or the Government against electoral authorities. Powers and Duties Electoral authorities’ power and duties have to be legislated in a clear way. A clear electoral legislation will also contribute to execute a more efficacious supervision over electoral authorities. Electoral authorities have to be independent, transparent, and impartial. Once an electoral authority has been integrated, it has to perform its duties and execute its powers in an impartial way. Every legal framework aims at guiding electoral authorities on how they have to organize a free and fair election. In doing so, electoral authorities have to perform their duties in an impartial and efficient way. Among the fundamental features of an electoral authorities, some can be listed as follows: a) Independence and Impartiality; b) Efficiency and Effectiveness; c) Professionalism, Legality, and Objectivity; and d) Clarity. Bearing this in mind, it is important to notice that when an electoral system finds itself in a consolidated stage, it is possible to answer some questions which can be arisen from the existence of autonomous organism, and which can be related to the available funds. Of course, to select an agency independent from traditional powers is the right move for countries going through a political transition. However, such a selection can raise some questions in the long run. The more successful the democratic transition can be, the less important en independent electoral authority becomes. This is particular true in the case of countries in which a real system of checks and balances has been consolidated. Checks and balances represent the existence of rule of law and the strengthening of public confidence towards public agencies. Besides, to keep an independent electoral authority under such circumstances can be very expensive. As a matter of fact, electoral authorities tend to be expensive institutions. Actually they can be seen as representing a disproportionate expense within the general framework of public services offered to taxpayers. In some countries, however, democracy is considered to be very valuable and the public funds used to pay for electoral institutions, seem to be justified. Usually successful elections are not reviewed from financial points of view. This is particularly true for those cases in which electoral expenses have been funded through international cooperation. However, as soon as electoral processes become more and more successful, democratic regimes become more and more consolidated and international funds become more and more scarce, financial considerations are located in a central spot. Under such conditions democratizing countries should do well asking themselves whether electoral expenses are exaggerated or not. Boundary DelimitationElectoral territories have to be defined in order to be studied from a legal point of view. An electoral territory is, thus, a territorial unit in which voting defines how congressional seats will be distributed among candidates or political parties. The boundaries of electoral territories are not equally important for all electoral systems. For some of them, distributing congressional seats can be seen as a very important and debated political decision. In many countries turning votes into congressional seats can bring along very dramatic changes for the political balances of a nation. A legal framework has to prevent any kind of gerrymandering from being adopted within an electoral system’s design. Every single vote has to be as valuable as any other. Legal frameworks have to organize the way in which electoral districts will be outlined and defined. Electoral districts have to be seen as supporting political representation and have to be modified once and again in order to match political and social realities. Legal frameworks have to answer some important questions, which can be put as follows: how often and under which circumstances electoral districts’ boundaries have to be redesigned; which will be the participation of both traditional branches of government and autonomous institutions in doing so; who will have the final word about it. There are different ways to set boundaries between electoral districts. Since such an activity can be seen as very significant from a political point of view, many countries exclude non-independent electoral authorities from such a task. Usually the whole process is vested in an especial commission which is helped out by the electoral authorities from a technical point of view. Especial commissions are integrated in many different ways: they can include political parties, non-partisan citizens, experts such as demographists. An electoral system will generally aim at turning the public will of voters into a representative government. Therefore, setting boundaries for each single electoral district can produce different results in different countries, even though basic principles always have to be followed. According to international standards, every single vote has to be as valuable as any other in order to elect an effective representation. Now, setting boundaries is not solved in an identical way by all countries. However, there are three universal principles which guide such an activity everywhere. Such principles can be listed as follows: representation, equal consideration of votes, reciprocity and anti-discrimination. Boundaries bringing apart electoral districts have to be set in a way in which, at the end, voters seen elected candidates as legitimate winners of the race. Usually, such a requirement means that electoral districts have to match interest communities, i.e, governmental regions, ethnic communities, racial communities, geographic zones (such as islands) limited by natural borders. From a structural point of view, setting boundaries for electoral districts is supported by a universal constitutional command: each man’s vote is as valuable as any other’s. Such a constitutional command turns every single vote into a definitive one in order to compose representative organs. Such principles can not be constrained by territorial considerations; on the contrary, each single electoral district must be represented by as many congressmen as its population makes it necessary (proportional representation) or by as many congressmen as any other electoral district is represented (direct representation). Boundaries for electoral districts must be set down using legal and clear procedures. Here the rules have to provide us with as much certainty as possible. Setting down electoral districts will have managerial consequences as well. Such consequences will have to be met by electoral authorities in charge of electoral management because they will have to adapt their structures to match electoral territories. It is also important to highlight that, once specific electoral districts have been implemented, such territorial units are not eternally fixated. Demographics will always demand a permanent revision of electoral districts. Voter RegistrationUsually, free and fair elections can not be undertaken without a proper verification on the voter’s fulfillment of legal requirements has taken place. Voters’ registrars must be seen as catalogues of citizens who have a right to vote. Therefore, voters’ registrars are fundamental for any voting system, and for any electoral legal system. Usually all the requirements that have to be met by citizens are established in the Constitution. Electoral laws have to regulate, design, and update such requirements (which have to be non-discriminatory). All the procedures related to the voter’s registration have to be complete and inclusive. Any doubt cast on it can stain the electoral results. Bearing this in mind, voters’ registrars generate certainty and security and have, therefore, a key role in establishing and consolidating a democratic regime, for it promotes a more enthusiastic participation of citizens within electoral processes. There is a general trend towards a more sophisticated development of voter’s registrars from a technical point of view. Such a trend has to be consolidated by electoral officials and political parties working together in order to generate public participation campaigns aimed at all the people. However, a voters’ registrar is not only important but also very expensive. The registration of voters and the production of voters’ catalogues usually represent 50% of the electoral expenditures as a whole. There are many different things which affect such expenditures, among which the kind of system used to register voters, the electoral id’s design, the managerial abilities of electoral authorities, and the social, economic, and demographic characteristics in each single country have a word to say in order to achieve a sound balance between the costs and the efficiency of voters’ registrars. In order to achieve such objectives, there are many different kinds of electoral registrars. They can be grouped once questions as follows have been answered: Is voting mandatory? What kind of electoral authority is in charge? Registrars can be mandatory, voluntary, centralized, de-centralized, permanent, non-permanent, independent or dependent of higher electoral authorities who are in charge of both the electoral registrar’s creation and updating. Among such higher authorities we find electoral authorities, demographic registrars, civil registrars, and so on. Such registrars are detailed under the title Definitions of methods for voters’ registrars. RequirementsThe right to vote must be seen as the right to participate in public affairs in a direct way. Therefore, such a right has to be enacted at the highest legal level (in the Constitution, for instance) in the most important. The right to vote has to be seen as very important constitutional right in any constitutional democracy. A majority of Constitutions around the world, set the minimum age from which citizens will be entitled to vote, either in general elections, or in indirect electoral processes. Both Constitution and enacted laws can regulate other requirements demanded from voters to be entitled to vote. Nowadays, there are some common requirements which must be met in order to allow an individual to execute her right to vote. Among such requirements we can list some as follows: the age, the citizenship, the entitlement to civil and political rights. Sometimes, to have a demographic registration in due time has to be considered as a necessary requirement as well. Such is also the case with the address of the voter at voting-day. It is clear, however, that any extra requirement can not be discriminatory. 1. Citizenship Usually, citizenship presupposes the existence of nationality seen as a legal connection between an individual and a State. Such a connection represents a requirement demanded from voters which has a historic justification. To be part of a political community allows citizens to participate in public affairs. Nationality and citizenship are not always twin concepts: such a distinction is important for those States in which inhabitants and citizens have different nationalities, because they have different historical backgrounds, different cultural backgrounds, and different political backgrounds. Besides, it is also important to remember that many times citizenship presupposes adulthood. A distinctive characteristic of a State is based on how sovereign it is, and to develop such a characteristic it is necessary to know who can be seen as citizens. Such a determination is usually developed by both the Constitution, and the laws. Both of them have to determine in a precise way who is a citizen, according to rules based on the place of birth, the age, and other elements. Both of them have to establish, therefore, what other requirements have to be met in order to get the nationality or the citizenship: to be considered as a legal resident in the country, the relation between the alien and the new country, marriage, parenthood and other legal connections to some nationals, and so on. Bearing this in mind, it can be claimed that citizenship is a legal concept, not a political one: both the Constitution and the laws of each single country say when someone can be considered as a national. In some countries, citizenship is not enough, though (especially when citizenship has been acquired in a particular moment, and by on grounds different to birth) to execute the right to vote. Usually, in such cases, to live for a while in the country where the election is going to take place, has also be established as a requirement. The immediate relation linking citizenship to the right to vote, has lost some ground, sometimes as a consequence of historical, and cultural reasons, on the one hand, or as a consequence of other reasons such a migration, or the commands derived from international treaties. Usually, when legal provisions are not set down legally, foreigners are allowed to vote in municipal elections. Behind such an authorization a powerful reason can be found: legal foreigners do participate in the daily life as any other individual does. Besides, municipal elections do not have a very influential political scope. The Treaty of the European Union of 1992, for instance, endorses the right to vote and the right to be voted for local posts in all the Union’s countries. In respect to such a right some precedents can be found in Denmark, Sweden, and Norway. The British case is quite interesting. There, citizens of the Irish Republic and the Commonwealth have also a right to vote in the British Elections. Likewise, it is important to mention the regulation of the election of members to the European Parliament. Such regulation pioneered many efforts which can be seen as typical in our days. (cfr. The Election of Members to the European Parliament). There, European citizens are allowed to vote whatever their residence might be. They also can be voted when their names appear in ballots voted in a European country different to theirs. Many conflicts can arise from nationality regulations. Such is the case which some of the former Soviet Republics are facing today (cfr. The Minorities Excluded from the Right to Vote in , and the Difficulties to be a Russian National). The restriction of citizenship to individuals of certain countries (from both a historical and a cultural point of view) has curtailed the right to vote of many different individuals. 2. Residence An individual’s residence can be relevant from two different points of view. First, foreign citizens can have a right to vote in an alien country’s local elections (they can even get the citizenship of the country in which they reside). Secondly, living in a foreign country can have a detrimental effect on foreign residents. The place of residence is very important for local or regional elections, and it can even be very important for the electoral registration. In some cases, particularly in those related to advanced democracies, citizens can vote in regional or national elections living abroad. In such case, electoral laws allow them to send their votes by mail, to vote in their consulates, or to vote in other places (as the right of soldiers, or diplomats living abroad). There are, however, some countries in which such is not the case. Voting abroad is very important for countries affected by massive and critical migrations. Some experiences can make irrelevant where the actual voting takes place. In Costa Rica, for instance, votes can be drafted in ATM Machines. It is worth to mention, however, that the places in which voters do live is very important to determine the electoral territory (not the voting point) in which her vote will be counted. The Electoral Registrar allow to draw clear borders bringing electoral territories apart from each other, which is important to determine what kind of election is going to be impacted by voters. 3. Age The age requirement to vote has followed the evolution towards universal enforcement of the right to vote. From a historic point of view, the age to vote has not matched the age to be punished for a crime. As a matter of fact, voters (around 25 years) were older than criminals. Different voting ages was established for women. In our days, however, the great majority of nations have set down that young individuals of eighteen years are citizens and can vote. Usually the age to vote is determined in the Constitution, for it represents a limitation against a fundamental right. Even though countries differ in respect to how old a person can be to be held accountable for a crime, there is a universal trend towards identifying adulthood to civil rights at eighteen years old. 4. Using fully both civil and political rights. Individuals have to be fully entitled to civil and political rights to vote. Such full entitled can be assumed, until evidence showing them as cancelled, is brought along. Therefore, the grounds and the procedures which will be used either to cancel or to suspend the use of civil and political rights have to be clearly established and specified in due time. 5. Limiting the right to vote. Individuals have a constitutional right to vote and a constitutional right to be voted. However, the use of such rights can be prevented on conditions which have to be set down on democratic regulations, and which can be listed as follows:
There must be an independent authority empowered to control decisions related to limits imposed on fundamental rights. Usually such authority can be identified with the electoral authority or with the Judicial Branch of Government. Anyway, any limitation imposed on fundamental rights must be judicially reviewed. Registration ProceduresCitizens have to fulfill another requirement to vote: they have to be registered in the electoral registrar. Such a requirement is completely instrumental. The electoral registrar is a catalogue within which citizens entitled to vote are included. The inclusion of citizens in such a registrar implies that citizens have met other requirements and are residents of a valid electoral territory. Electoral laws have to establish adequate and simple mechanisms aimed at promoting the voter’s registrar development. Such a registrar has to be updated. As it has been said, electoral registrars play a fundamental role to generate trust among citizens. Electoral registration of citizens can be undertaken under three different systems: the creation of a permanent catalogue, the creation of a permanent registrar, the use of civil registrars. Political Parties and CandidatesA fundamental characteristic of electoral laws is how they regulate the activity of political parties and candidates. The regulation of political parties and candidates is fundamental for any electoral system. Political Parties can participate either on their own or associated to others. Sometimes independent candidates run on their own. Some countries authorize the existence of other political organizations including associations of individuals to participate in the election either on their own or in partnership with traditional political parties (as it happens in Mexico). However, the current state of affairs, suggests that for a democracy based on the existence of political parties, the role play by such organizations and their relations with other organizations are fundamental. The regulation of the activities of political parties and candidates within an electoral process, especially in respect to the selection of candidates and electoral campaigns, is a fundamental of any electoral system. To begin with, electoral laws must establish who and how are authorized to run and under which conditions. Usually, such topics are regulated by the Constitution (the fundamental right to be voted is involved). However, in some countries the fundamental rules are established on the law. The important thing, however, is to highlight that every single aspect of political organizations and political parties have to be regulated. Such a regulation has to do a detailed work in order to include the funding regime, the rights and privileges of members, the relations between the organizations and the candidates, and the electoral participation, among other things. Political Parties and Other OrganizationsBroadly speaking, a political organization is an institutional expression of a particular ideology of a people, or an institutional expression of some political interests of some social groups. Such an ideology is related to specific public affairs of general interest and is can affect both politics and governments. Every single political organization is derived from a particular reality and it is expressed through subjective and objective devices. Structural topics can be seen as subjective devices, while normative realities understood also as instruments, can be seen as objective ones. Objective devices have a more important role to play to build-up a legal framework. Objective devices will affect the society in which they exist as long as they are publicly recognized, regulated, and funded. The foundation of political organizations is derived from specific rules and general principles aim at ensuring the achievement of general objectives derived from the law or from decisions made by such organizations on their own. As a matter of fact, political organizations are not capable to ensure a permanent existence on their own. That is the reason why their aims, objectives, powers and legal existence have to be legally established. Without a legal support, political organizations’ existence would be unstable, anarchic, and disordered. Besides, a legal system has to recognize that internal regulations applied on political organizations and which affect their structure, relations, composition, scope of action, discipline, and other topics, must be enacted and applied by members of the organizations. A legal system has to recognize the organization’s right to self-determination. The activity of political organizations have to be limited by specific rules, i.e, such activity has to be regulated and oriented by established rules and procedures which are derived from the legal system within which political organizations exist. Political organizations neither have the same origin, nor the same compositor. Political organizations have not identical objectives. That is the reason why a legal framework has to distinguish and constrain their independent activities. In what follows (Political parties, Coalitions, and Other political organizations) the more important types of political organizations that have to be legalized, will be detailed.
Political Parties. Alliances of Political Parties. Other Political Organizations. Candidates. Qualifications. Independent Candidates. Registration Process. Voting Operations. Polling Reception Centers. Voting Process. Vote Counting. Voter Education. Media and Elections. Elections and Technology. Election Integrity. Electoral Dispute ResolutionAccording 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 a real protection for and an 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:
The whole system is based on a capital principle: the judicial agents in charge of sorting out electoral controversies must be independent, impartial and proficient from a technical point of view 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. As a matter of fact, 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 for this matter. 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 of Justice played a decisive role at the 2000 presidential contest, which can also be recalled. In the same line of reasoning 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 the 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 the significant role for the democratic societies of the 21st century played both by the electoral justice system and the protection of the fundamental right to legal elections It can be said that 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. It must be said that even those countries that have not provided courts with electoral reviewing powers are nonetheless supposed to accomplish the aforementioned 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. Election NullificationTo guarantee the legality of the election and electoral procedures the law sets different causes for their nullification (this as a sanction for violating the law). In this section we are going to analyze only the nullification of electoral results, comparing between 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 discretionality 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 this 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 his own clumsiness. Such principle is contained in the Latin expression nemo admittitur aut auditur propriam turpitudinem allegans. a) 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 we find some as follows: 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 in more than one name or one team in 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 on the voter’s legitimacy and identity. Such appeals are solved by superior agencies (Argentina and Uruguay). The nullification of individual votes refers to the votes issued by individual voters, and affect 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). b) Nullifying votes received at a voting site The reasons on which the votes received at a voting site can be nullified are separated into three different groups: irregularities committed during the integration of the voting site; irregularities committed during the voting process; and irregularities committed while counting the votes or drafting the voting site’s certificate. i) Irregularities committed during the integration of a voting site: Broadly speaking, any voting site integrated in an unlawful way can be nullified (Brazil, Panama, and Venezuela). Unduly integrations 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 installed in an unauthorized location and in an unjustified way (Brazil, Costa Rica, Peru, Mexico and Venezuela). ii) Irregularities committed during the voting process: Among this kind of irregularities, we can find some as follows: 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 alter 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’ registry 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). Besides, nullification will also be valid under the following circumstances: When members of a voting point 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, frauds 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 changed the electoral result in a reasonable way (Guatemala). Other irregularities committed during the voting process can be recognized on situations as follows: 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). iii) 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 situation can be considered as a 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 up 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). Likewise, electoral counting can 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 done legally. 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. Besides, 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 such an 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 gathered by in 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 in both the whole 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 have, however, some effects such as counting adjustments (which can alter the number of congressmen elected by proportional representation). As a matter of fact, in Mexico the nullification of a voting site results can even produce a winner’s declaration of 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 notice 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 site’s 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 is 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 from judges to 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 to resolve procedures which have not been started off by an agent who is authorized to ignite 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). c) 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. i) 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). ii) 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). iii) 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 the election day can be used to ground the nullification of electoral results. In Uruguay, any action which has harmed the election, can ground the 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, do have a similar effect. Brewer-Carías has warned us 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 a 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 solve 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 arise 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. d) 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 unauthorized 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 have 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.
Different SystemsThe 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 ModelAccording 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 ModelThe 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 ModelThe 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). AutonomousThe 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 JudiciaryThe 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 ModelThe 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 ResolutionThe 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.
Appeals and Other Challenging MeansThe 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). TermsDeadlines are not always set down in an explicit way. However, there is a general trend according to which the periods during which electoral appeals can be filed have been reduced. Such a trend is derived from a couple of needs. On one hand, it is necessary to renew public offices without any delay whatsoever. On the other hand, it is necessary to spend less and less time campaigning. Two different appeals that can be distinguished from each other produce different filing deadlines. On one hand, deadlines are very different for those appeals used to challenge voters’ registries. We can find three-daydeadlines (Costa Rica, Guatemala, and Panama), four-day deadlines (Mexico), five-day deadlines (Chile, Dominican Republic, and Uruguay), fifteen-day and twenty-day deadlines (Argentina) and even thirty-day deadlines (Colombia). With regards to the preparations for the election day, we find three-day deadlines (Brazil and Guatemala), four-day deadlines (Mexico) and five-day deadlines (Argentina and Uruguay). Some countries’ deadlines are farther, such as the appeals against the registration of political parties (ten days in Peru and thirty days in Paraguay). On the other hand, there are also different deadlines to file appeals against electoral results. We have those which can be filed within twenty four hours after the counting has been done at the voting sites (Bolivia and Colombia); we have “claims” and “complaints” which can be filed before superior electoral authorities (before elections are validated), which have to be filed within two days at the most (Argentina, Ecuador, El Salvador and Dominican Republic); we have some other cases in which electoral results must be appealed within three days (Brazil and Costa Rica), within four days (Mexico) and five days (Honduras, Nicaragua, Panama and Uruguay). In Chile, electoral deadlines are set at the fifteenth day, while in Venezuela they are set at the twentieth or even the thirtieth day (with respect to the presidential contest). Peru decided to leave a more open deadline. Appeals can be filed there until a candidate has been declared as the winner. Concerning electoral results, it must be noticed that some systems for electoral litigation authorize departments within their electoral authorities to solve appeals within different deadlines, such as those three days established in both Brazil (when the Supreme Electoral Tribunal solves the appeals filed against the rulings issued by regional electoral tribunals) and Mexico (when the Superior Court of the Electoral Tribunal solves the appeals filed against the rulings issued by regional courts on the inconformity appeals derived from congressional elections); as well as in Bolivia, without a specific deadline (when the National Electoral Court solves the appeals filed against the department electoral courts); and another option is an appeal filed within the same superior electoral authority (Guatemala and Nicaragua). In addition, some systems include the possibility of appealing before a non electoral judicial authority for constitutional reasons (Bolivia; Brazil, three days; Guatemala, five days to fill a constitutional review in the Supreme Court and two more days for an appeal at the Constitutional Court, like in Honduras or Panama), legality reasons (Colombia, eight days), or even a revision before a political authority (Argentina, with no specific deadline). Deadlines to solve electoral appeals are not always regulated, and those that indeed are, have great variations. Regarding the appeals against the electoral registry, the deadlines to solve them fluctuate between six (Chile and Mexico), eight (Guatemala) and ten days (Uruguay). Appeals against the creation of new parties vary from three (Costa Rica), four (Peru), six (Mexico), ten (Argentina) and fifteen days (Chile). Also the appeals filed against acts to prepare the election must be solved within three (Guatemala), five (Argentina) or six days (Mexico). There are also some systems that do not specify a deadline, but they establish a point of reference such as before the declaration of the election (Costa Rica), before the elected authority takes the office or before the installment of the state congress (Mexico for state elections), or finally a deadline marked by an specific date (Mexico, which means twenty days for regional electoral tribunals to solve appeals filed against congress elections and ten to fifteen days for the superior electoral authority in the Electoral Tribunal for reconsidering appeal against congress election or sixty days for presidential election). Deadlines granted to jurisdictional bodies to solve appeals filed against autonomous electoral authorities in the matter of electoral results vary from three days (for the Supreme Court of Guatemala to solve trials related to the violation of fundamental rights), five (for the Constitutional Court of Guatemala to solve appeals), to fifty days (Colombia). In Argentina, regarding the appeals against electoral results filed at political agencies, there are no deadlines. As a matter of fact, with regard to congressional elections, appeals can be filed even after Congress is opened for business (which means that congressmen hold their seats in a provisional way. In other words, they can be removed and replaced by other candidates after an appeal has been solved). EvidenceBroadly speaking, evidence provisions are not very detailed by electoral laws. Many times, no clear rules can be found at all. In some cases, the rules contained in traditional procedural statutes (Civil Code, Administrative Code) are used in electoral litigation, especially, to admit and evaluate evidence brought by contesting parties (Bolivia, Guatemala, and Paraguay). Besides, those countries that allow filing electoral appeals at ordinary courts, usually allow the use of traditional procedural statutes to manage evidentiary issues. We can think of some conclusions as follows: a) Evidentiary mechanisms In many countries, it is compulsory to include all documentary evidence within the appeal (Costa Rica, Chile –in those cases in which the voters’ registry is challenged–, Ecuador, Mexico and Peru). While some countries authorize both the plaintiff and the defendant to offer evidence to prove their claims (Argentina, Bolivia, Chile, El Salvador, Honduras, and Panama), only a couple of countries establish limits such as considering just electoral documents as valid evidence. In Colombia any kind of evidence can be used to support any appeal filed at the Fifth Section of the Chamber for Administrative Litigation of the State Council. Mexico authorizes the use of public and private documents, technical evidence, judicial files, the so-called human and legal assumptions, confessions, testimonies and experts’ declarations to support electoral appeals. Most of the cases allow electoral authorities to gather all evidence that can help them in reaching a more satisfying decision (Argentina, Colombia, Chile, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, and Uruguay in some cases). Electoral appeals must be solved within specific deadlines and the representative agencies of a nation must be renewed in time. Therefore, electoral authorities have established rules according to which they will only admit evidence which can be used to support the contenders’ claims and which has been attached to the appeals whithin the corresponding time limit. Evidence such as the one provided by witnesses can hardly provide courts with relevant evidence for solving electoral issues. The reason is clear: contenders can offer as many witnesses as they can gather, whose testimonies then could result in many contradictions. Bearing all this in mind, it is important to highlight that Latin American systems for the resolution of electoral disputes are similar among themselves. While those countries in which admissible evidence is restricted to few cases allow judges to expand the number of things that can be used as evidence (Colombia and Mexico), those other countries that have wider rules for the admission of evidence allow judges to restrain the number of things that can be used as evidence. From both points of view, evidence is a tool that must be used to reach a more satisfying decision before meeting the established deadline. b) Evaluating evidence From a theoretical point of view, there is a very influential procedural trend according to which different systems to evaluate evidence can be listed as follows: i) System of legal evidence: legislative texts establish how effective evidence can be; ii) System of free evaluation: courts are free to evaluate all the evidence attached to the appeal, in order to reach a satisfactory resolution in a free way. In such a system, judges are free to evaluate evidences from their personal, rational, or moral beliefs. No constraints are imposed upon judges in charge of solving appeals; iii) System of rational evaluation: In such a system courts are empowered to determine how effective a proof can be considered. To do so, judges have to use logic and base their decisions on their experience. The system of rational evaluation is somewhere in between the other two; and iv) Mixed System: Elements of the previous systems are combined. Very few electoral laws define the way in which evidence has to be evaluated to resolve electoral disputes. Three countries establish a system of free evidence (Colombia, where the National Electoral Council and its delegates are free to evaluate factual evidence; Chile, where the Tribunal for the Validation of Elections will work as a jury to evaluate factual evidence; and Peru, where the National Jury for Elections is empowered to solve appeals evaluating evidence on their own). Two countries demand rationality from their electoral authorities (Costa Rica and Panama), while a single country establishes the system of legal evidence (El Salvador sets down not only that no more than three witnesses can be called to testify, but also that testimonies will never be enough to nullify an electoral order). Mexico follows a mixed system, because not only public documents are recognized there as the most valuable evidence. Electoral authorities are also compelled to be rational. Legal Framework End Notes. Legal Framework - Bibliography
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