There are different kinds of resolutions that can be challenged by electoral appeals. There are those resolutions related to both the electoral registration and voter identity; those related to the administration of political parties, which include 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 related to election
day.
a. Electoral Registry and Voting Card
The voter register underlies the integrity of an election and may be
expected to be the subject of complaints and inquires as to its accuracy. The resolutions within this
classification that can be appealed, include all those made by the electoral
officials in charge of registering voters, issuing voter identification cards
(whenever such cards may have electoral effects) or voting cards (whether such
a card includes the voter’s photograph or not), building-up the voters’ register
(especially when the resolution unduly approves or dismisses a citizen’s
request to be included in the register).
Electoral registers are different from voters’ lists. The system of appeals
of the resolution of electoral disputes recognizes the distinction. Whereas
citizens are authorized to file appeals against electoral registers, political
parties are authorized to file appeals against voters’ lists.
Some argue that the legal framework should establish
an exclusive venue for filing complaints and appeals in these limited matters
so that each instance does not unnecessarily add to the burden of the courts.[ii]
b. Political Party Regimes and their Internal
Democracy
Reviewable resolutions regarding political parties’ regimes can
be distinguished as follows:
i. Declaration
on the Unconstitutionality or Illegality of a Political Party and
Resolution on the Approval, Denial or Nullification of a Political Party
Registry
Reviewable resolutions are those related to the foundation, existence or
extinction of political parties and to a 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 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 are the following: 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 legislation 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 resolve 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 establish democratic
principles that have to be followed by political parties. They also allow
political parties to determine a structure and an internal democratic regime on
their own. Usually, those regulations can be seen as grounding some other
political parties’ obligation such as the registration of the party’s statutes
or the notification made upon the party’s statutes to electoral authorities and
which is normally used by those authorities to review the statutes’
constitutionality and legality.
Usually, electoral courts (courts, councils, boards or juries) are
empowered to resolve constitutional and legal controversies related to
political party’s statutes. In those countries where the rulings issued by
electoral tribunals are not definitive, the resolving powers are vested in the
Supreme Court of Justice or in a constitutional tribunal.
In a general sense, 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: the 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. 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 leaders 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.
Such basic principles sometimes include that the electoral authority is
empowered to intervene within a political party’s primaries and internal
elections. Some other times, courts are empowered to resolve 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 resolve such
controversies) against illegal decisions taken by political parties that
violate a right of the member, especially the right to associate with others.
Whenever a member of a political party is expelled, due process of law demands that
political parties to allow the member to file internal appeals before doing 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. Disciplinary rules
applied by political parties must be seen not only as composing such parties’
right to administer 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 undue interference from any branch of government.
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 resolving the
unfair expulsion 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 leaves the affected member of
the political party with no defense. Such a situation would represent a clear
violation of 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.
Election Day
Common complaints include, accessibility,
long waits or congestion, inaccurate lists, refusal by officials to provide a
ballot, double or underage voting, campaigning in or impermissibly close to the
polling location and voter intimidation, tampering with or removal of a ballot
box from public view or the insertion of fraudulent ballots.[iii]
e. 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 resolved
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). 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.
f. Other Appeals
Many electoral authorities, such as the regional ones, are empowered to
both review and resolve 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 resolve disputes derived from congressional or
presidential elections) are vested in the federal authorities empowered to resolve
the disputes derived from local or state officials (such as mayors or
councilmen). An example of this 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 resolve 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 resolve 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 resolve 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 resolve 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 resolve labor disputes between electoral authorities and their
workers.
[ii] OSCE, Resolving Election Disputes in the
OSCE area: Towards a Standard Election Dispute Monitoring System, 12.
[iii] Robert Dahl and Michael
Clegg, 107.
