The institutional and political circumstances of each country largely determine its choice of procedures for the resolution of electoral conflicts.
A state that undertakes a transition from an authoritative regime is probably faced with the need to facilitate the acceptance of the electoral results by strengthening such procedures in an undisputed manner, which is why it is difficult to leave it up to the ordinary judicial organs that had already acted under the regime from which they evolved.
The case is different in states that are, institutionally speaking, not very highly developed, in which the electoral process is a step prior to the consolidation of a state structure based on the separation of powers. In these, a non-existent or underdeveloped judiciary can hardly be used, and the organ commissioned with the electoral process must be formed so that it can overcome this shortfall, as it will surely have to take the place of a public administration in handling disputes.
The proposition is radically different in a politically and socially developed country where the judiciary is really independent and which has an effective administration. In such a case, it is also possible to leave the solution of a multitude of conflicts that may arise in each phase of the elections to the organ commissioned to run and execute them. The reasons would be efficiency, to assure unity on the solutions, the solutions are expeditious and that they are based on the technical knowledge of the organisation.
However, the following requirements should be determined for the bodies that have to hear these conflicts:
- a legal statute that establishes their composition with sufficient guarantees of independence with respect to the executive power and the contending parties or candidacies
- acceptance of their legitimacy from this point of view by the electoral contenders, as well as by the voters at large
However, an examination of different national systems shows highly varied solutions concerning the formula chosen to organise the successive measures of control and guarantee the independence of the bodies that implement it. The following national examples are representative of this diversity:
In the Federal Republic of Germany, any decisions regarding the candidacies, defects that can be rectified and the rejection of defects that cannot be rectified, have to be made by the electoral directors at the respective territorial levels, appointed by the federal government or the government of each of the federated states. It is possible to appeal against their resolutions before the electoral policy body at the relevant level, whose members are also designated by the respective executive powers, directly or indirectly. These organs have the task of imposing sanctions for regulatory infringements (e.g., for the publication of surveys at forbidden times). The Bundestag is responsible for the review of disputes related to the electoral results, and their resolutions may be appealed before the Federal Constitutional Court. The weight that the executive power carries in the designation of the members of the organs that hear and resolve the essential conflicts is evident, the swiftness with which they are solved is remarkable, and the possibilities of access to independent organs is limited, without the legitimacy of the system or of the electoral results having been questioned.
Spanish law aims at strengthening the guarantees of independence of the bodies that intervene in the resolution of all kinds of electoral disputes. Therefore, the electoral bodies are composed of judges and magistrates chosen for each territorial level by the drawing of lots, along with professionals in law nominated by the legislative power at the proposal of the political groups represented. In addition, the naming of candidacies as well as of candidates-elect can be appealed before the constitutional court.
A third example is the 1996 Mexican electoral reform. In order to strengthen the guarantees of independence, transparency and control, the executive power has been denied all participation and representation in the Federal Electoral Institute (FEI), an independent organ commissioned to run the entire electoral process. The appointment of its members is left to the legislative power, demanding reinforced agreement to assure sufficient consensus. The structure and the permanence of the FEI, in turn, are considerably strengthened, and it is also in charge of subjects related to the recognition, funding, access to the media and other matters pertaining to the political parties. On the other hand, the Electoral Court is incorporated into the judiciary, before which it is possible to appeal the rulings and resolutions of the electoral authorities, that can affect the final results of the electoral processes.
In Mozambique in 1993, free and fair elections constituted the basis on which the institutional and technical conditions that were lacking in the country could be created, in the midst of conditions in which there were an absence of logistical capabilities, mutual distrust and an extremely weak administration. In cases like these, the whole electoral process is a continuous effort to develop the system and the electoral infrastructure, under the management of an independent executive body that disposes of substantial international aid and carries out activities based on consensus to overcome the material, technical and political problems that emerge at each step. This will be the organ that, in accordance with constructive and agreed upon criteria, will have to solve the conflicts emerging in a process that must aim not only for electoral results that are recognised as legitimate but, also, a new electoral system that will permit its continuity.
