Judicial precedents are essential to 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 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.
