It is almost inevitable in the course of electoral competition that disputes will arise and so effective electoral dispute resolution mechanisms are vital because such disputes, “have the potential to undermine the integrity of the electoral process and lead to either overt or covert social conflict.”[i]
According 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 real protection for and 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 an overriding principle: the judicial agents in charge of sorting out electoral controversies must be independent, impartial and technically proficient 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. The legal framework should therefore clearly state that every voter, candidate, and political party has the right to lodge a complaint with the competent election commission or court, require that body in turn to render a prompt decision and provide for the right to appeal to the court of last resort.[ii]
The legal system should also ensure that the complaints system is transparent, understandable and free of unnecessary obstacles, particularly high cost.[iii] Transparency also needs to respect the need for confidentiality during investigation and internal decision making but to the extent possible the reporting on general progress is encouraged and most importantly the final adjudication should be fully public.[iv]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.
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 also played a decisive role at the 2000 presidential contest. Similarly, 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 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 for democratic societies of the 21st century the significant role played by the electoral justice system and the protection of the fundamental right to legal elections.
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.
Even those countries that have not provided courts with electoral reviewing powers are nonetheless supposed to accomplish these 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.
[i] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 29.
[ii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 31.
[iii] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Denis Petit, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System (Warsaw: ODIHR, 2000), 10-11.
[iv] Robert Dahl and Michael Clegg, “Legal Frameworks for Effective Election Complaints Adjudication Systems.” In International Foundation for Electoral Systems, Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE),Edited by Chad Vickery. (United States of America: IFES, 2011), 102.
