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.
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.
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.
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.
