Broadly speaking, evidence provisions are not very detailed by electoral
laws. Many times, no clear rules can be found at all. In some cases, the rules
contained in traditional procedural statutes (Civil Code, Administrative Code)
are used in electoral litigation, especially to admit and evaluate evidence
brought by contesting parties (Bolivia, Guatemala, and Paraguay). Those
countries that allow filing electoral appeals at ordinary courts usually allow
the use of traditional procedural statutes to manage evidentiary issues. Some
conclusions may nevertheless be offered as follows:
a. Evidentiary Mechanisms
In many countries, it is compulsory to include all documentary evidence
within the appeal (Costa Rica, Chile – in those cases in which the voters’
register is challenged–, Ecuador, Mexico and Peru). While some countries
authorize both the plaintiff and the defendant to offer evidence to prove their
claims (Argentina, Bolivia, Chile, El Salvador, Honduras, and Panama), only a
couple of countries establish limits such as considering just electoral
documents as valid evidence. In Colombia any kind of evidence can be used to
support any appeal filed at the Fifth Section of the Chamber for Administrative
Litigation of the State Council. Mexico authorizes the use of public and
private documents, technical evidence, judicial files, the so-called human and
legal assumptions, confessions, testimonies and experts’ declarations to
support electoral appeals.
Most of the cases allow electoral authorities to gather all evidence that
can help them in reaching a more satisfying decision (Argentina, Colombia,
Chile, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, and Uruguay in
some cases).
Electoral appeals must be resolved within specific deadlines and the
representative agencies of a nation must be renewed in time. Therefore,
electoral authorities have established rules according to which they will only
admit evidence which can be used to support the contenders’ claims and which
has been attached to the appeals within the corresponding time limit. Evidence
such as provided by witnesses can hardly
provide courts with relevant evidence for resolving electoral issues. The
reason is clear: contenders can offer as many witnesses as they can gather,
whose testimonies then could result in many contradictions.
Bearing all this in mind, it is important to highlight that Latin American
systems for the resolution of electoral disputes are similar among themselves.
While those countries in which admissible evidence is restricted to few cases
allow judges to expand the number of things that can be used as evidence (Colombia
and Mexico), those other countries that have wider rules for the admission of
evidence allow judges to restrain the number of things that can be used as
evidence. From both points of view, evidence is a tool that must be used to
reach a more satisfying decision before meeting the established deadline.
b. Evaluating Evidence
From a theoretical point of view, there is a very influential procedural
trend according to which different systems to evaluate evidence can be listed
as follows: i) System of legal evidence: legislative texts establish how
effective evidence can be; ii) System of free evaluation: courts are free to
evaluate all the evidence attached to the appeal, in order to reach a
satisfactory resolution in a free way. In such a system, judges are free to
evaluate evidence from their personal, rational, or moral beliefs. No
constraints are imposed upon judges in charge of resolving appeals; iii) System
of rational evaluation: In such a system courts are empowered to determine how
effective a proof can be considered. To do so, judges have to use logic and
base their decisions on their experience. The system of rational evaluation is
somewhere in between the other two; and iv) Mixed System: Elements of the
previous systems are combined.
Very few electoral laws define the way in which evidence has to be
evaluated to resolve electoral disputes. Three countries establish a system of
free evidence (Colombia, where the National Electoral Council and its delegates
are free to evaluate factual evidence; Chile, where the Tribunal for the
Validation of Elections will work as a jury to evaluate factual evidence; and
Peru, where the National Jury for Elections is empowered to resolve appeals
evaluating evidence on their own). Two countries demand rationality from their
electoral authorities (Costa Rica and Panama), while a single country
establishes the system of legal evidence (El Salvador sets down not only that
no more than three witnesses can be called to testify, but also that
testimonies will never be enough to nullify an electoral order). Mexico follows
a mixed system because not only public documents are recognized there as the
most valuable evidence. Electoral authorities are also compelled to be
rational.
In conclusion, “Election disputes
are inherent to elections. Challenging an election, its conduct or its results,
should however not be perceived as a reflection of weakness in the system, but
as proof of the strength, vitality, and openness of the political system.”[i]
[i] OSCE, Resolving Election Disputes in the
OSCE area: Towards a Standard Election Dispute Monitoring System, 5.
