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.