Broadly speaking, electoral appeals can be grouped within two different
classes; administrative appeals and judicial appeals. In order to avoid the
anarchic situation already referred to, it is helpful to adopt formal criteria
in what follows. According to such criteria, both the ruling agency nature and
denomination will be used to determine whether each appeal is administrative or
judicial.
a.
Administrative
Administrative appeals are all legal instruments that can be used by an administrative
agency in order to resolve electoral appeals filed by political parties, candidates
and citizens against executive orders issued by electoral authorities.
Administrative appeals are resolved 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 or revoking citizenship cards is an example just
as the Electoral Supreme Council of Nicaragua can do in respect to appeals
filed against its electoral counting). Some other countries authorize a
superior authority to resolve 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 of 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.
In many regions electoral management bodies will be
charged both with managing the electoral processes and resolving complaints. The real strength of this approach is the
familiarity with the subject matter and processes held by the electoral
management body but it can also be argued that there exists an inherent
conflict of interest which precludes electoral management bodies qualifying as
independent tribunals.[i] Such a process may also reduce the accountability
of the management body if it hears appeals of its own decisions.
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
Procedural remedies are essentially, 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 of the resolution’s effects, provided such a
clarification does not imply a substantial alteration of the resolution. In a
very similar way, the Tribunal in charge of qualifying 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
Procedural reviews are effectively 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 in turn can be divided into three separate groups: ordinary reviews,
extraordinary reviews and exceptional reviews.
- Ordinary reviews:
The classic ordinary review, which has a universal aspiration, is simply
known as an “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 as follows: the appeals filed against
electoral judges and electoral boards which are resolved by the National
Electoral Chamber of Argentina; the appeals filed against electoral
departmental courts which are resolved 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 resolved by the
Chilean Court of Appeals; the appeals filed against the local juries for
elections, which are resolved by the National Jury for Elections of Peru; and
the appeals filed against the electoral boards’ resolutions which are resolved
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 is 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 resolved by the Superior Court of
the Electoral Tribunal of the Federal Judicial Power of Mexico. The
reconsideration review is used to challenge judicial resolutions already made regarding
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.
Other examples include those countries in which the unconstitutionality of
electoral courts’ resolutions can be appealed before a Supreme Court of
Justice, as is the case in Argentina, Guatemala, El Salvador, Honduras, Panama
and Paraguay. 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 resolve quite complicated
cases. Such reviews are filed against definitive rulings after the emergence of
new and previously unknown circumstances that could nullify the reasons
supporting the definitive ruling. Article 148 of the Costa Rican Electoral Code
provides 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 that 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 such
circumstances or wrongdoings could be predicted to result in a change in the
electoral result.
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. In fact,
appealing procedures are derived from the challenge filed against the
resolution made in a previous executive procedure.
Lawsuits that can be filed against executive orders related to electoral
results issued by the Argentinean National Electoral Council are worth
mentioning as are lawsuits that can be filed before the Fifth Section of the
Chamber for Administrative Litigation of the Colombian State Council. Other
important cases include 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. First, the so-called inconformity trial and second, 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 resolutions
made by the National Electoral Council.
[i] DRI and The Carter Center, Strengthening
International Law, 44.
