The role of the courts in the sound development of an electoral process varies, depending on the legal traditions and the administrative organisation of the elections. In addition, their effective activity is determined by the political and institutional circumstances in each emerging situation.
Above all, the degree to which court procedures are applied to the electoral process itself varies, depending on whether this is produced by the integration of judges and courts into the electoral administration or by the specific control that they have throughout each phase. Systems in which the electoral process is run by a specific independent organisation usually have a prominent complement of judges, priding themselves on their independence and legal knowledge when it comes to solving conflicts.
Electoral Offences
But of special interest here is what action they will take in the face of infringements pertaining to the electoral procedures. In reality, the range of possible serious infringements covers each and every phases of the electoral process. Electoral law essentially regulates a procedure that permits each citizen with the right to vote to cast it freely, the candidates or supporters of each one of the different candidates or referendum options to request their vote, and the conversion of the votes in the regulated way to determine which are the winning candidates or positions.
In each of its phases, it is possible to have behavior that may prevent the smooth running of the elections:
- presentation of a candidacy may be illegally limited;
- the electoral register may be tampered with and therefore compromised;
- electoral propaganda may be held up or wrongfully favoured by public employees;
- illicit means may be employed to canvass votes, such as coercion, bribery or fraud;
- propaganda may be contradictory to the truth or to the rules established to safeguard respect towards the adversary;
- propaganda may be made at forbidden times (the day of reflection) or in forbidden places (headquarters of public institutions), or by employing unauthorised means (violence, abridging individual rights or public freedom);
- the ballot paper of certain parties may be missing;
- public mass media may be used unfairly in support of one candidacy over another;
- a candidacy that has the right to public funding may have been deprived of it;
- the voting itself may be limited or subject to coercion, or the presence of the representatives of the candidacies limited illegally;
- some of the persons in charge may try to forge the results.
Unfortunately, the possibilities are endless. Each one of these transgressions poses two legal problems of a different nature. It must be determined which persons were responsible for what illegal conduct so as to sanction them. But just as important, and requiring greater speed, is that a stop must be put to the forbidden conduct to re-establish the violated rights. The campaign that has been obstructed must continue; anyone unduly excluded from the voters list must be permitted to vote; or any candidacy that met the requirements and had not been accepted, must be able to run for elections.
There are two basic models in this regulation:
- systems that try to classify each kind of illegal conduct accurately, establishing a system of penalties in proportion to how serious the infraction
- systems that leave the interpretation of broad clauses in the hands of the judicial or administrative organ commissioned to adjudicate them (the prohibition of making propaganda by inadmissible or improper means, impeding the free assertion of the vote, etc.)
Principles
It must not be forgotten, on the other hand, that the intervention by the courts in the control of the process must be considered as the ultima ratio. An electoral contest in which they continually have to intervene to settle disputes reflects the immaturity of the system, in which the regulations have not been fully assumed by the candidates in opposition and in which it is foreseeable it will be difficult for those who are in the minority to accept the results.
The rule of thumb should be the opposite--a basic agreement on the development of the process, which includes the acceptance of the established or agreed rules and a simple and swift form of resolving conflicts. Ideally, the role of the judges and courts that are not incorporated into the electoral administration must remain limited to the sanctioning of serious infringements that do not fall under the latter and to the established
resources when making their decisions.
This supposition of minimum intervention has another principle as a consequence, to a certain extent related, which is subordination--the conflict must be solved by the authority below or closest to the problem.
Thus, in the case of local elections, preference must be given to action by the electoral administration for that place or the judicial bodies on that level. It is true that the need to guarantee equal solutions determines that the judicial or independent bodies on a higher level have to be able to establish homogeneous criteria for different solutions by the local authorities. But it is preferable for the first solution to fall upon them, as long as there is a minimal structure that makes this possible, so that the response will be faster and more immediate and to avoid that local problems develops excessive relevance because of the category of the body that has to solve them.
Their intervention must be guided by principles of stringent procedures and speed, given the brief and preclusive nature of the electoral periods. The procedures should limit formal requirements to the minimum, strictly specify the object of the conflict, the parties that may intervene and the proof that can be furnished, and set very brief periods for resolution.
Powers
The internal rules in each state that determine which judges should hear which electoral conflicts are as varied as their legal traditions and their territorial organisation. The contents and the possible legal consequences of their intervention also vary, with generally two opposite poles:
- countries with a tradition of a code system, in which judges are subject to a principle of classification of offences and strict rules on procedures
- the common law countries that have greater freedom in both respects
It must be noted, though, that in the case of the former, there is a greater flexibility when those entrusted with solving disputes on electoral matters are independent and not judicial organs, such as electoral boards.
In this regard, the need to re-establish damaged rights is determinant: it is only possible to avoid the effects of undercover or illegal advertising if the court order demanding that it be ceased is fulfilled at once; the illegal exclusion of a candidacy or the absence of a voter on the register can only be corrected if the solution is put into practice within a question of days or hours. In the face of this urgency, the excessive red tape and the sluggishness of traditional written procedures in the legal systems of Latin origin, for example, fall short.
The same can be said regarding the usual appeals against the decisions of the
bodies acting in the first instance, as this is about guaranteeing essential political rights. They must be clearly regulated proceedings, have brief time limits, an object of proof strictly limited to the core of the conflict and the decisions must be executed in a peremptory manner.
