At each stage in the electoral process typical conflicts can arise that are worth a closer look. The proposal, evaluation and announcement of the candidacies to take part in the electoral process is of evident importance, since it implies the formalisation of the terms of the electoral contest by establishing who will participate in the election, benefit from public aid, appear on the ballots and possibly be elected.
The electoral authority has to examine the candidacies put forward to ensure that they meet the requirements and inform their representatives of any deficiencies. The purpose of this is the fulfilment of the law, both in the positive sense (anyone who meets the formal, fundamental requirements demanded by the electoral procedures and wishes to be a candidate may be one) and in the negative sense (only the candidacies that meet the said requirements may take part). On the other hand, in no case may it be a discriminatory examination, nor may any criteria other than those legally established for this evaluation be applied.
The electoral administration must be guided by a positive attitude, to point out possible deficiencies and, whenever possible, allow candidates the means to correct them in time to become eligible to run in the election, without burdening or disabling them with unreasonable bureaucratic procedures.
The rectification of formal or documentary deficiencies must be supported by prompt notification in order to facilitate legitimate candidates being able to stand for the elections. As a rule, the omission of some name on a list, the absence of substitutes, the fact that some of the candidates do not appear on the voters list due to a material mistake, etc., must be considered as rectifiable. In short, these would be elements which would not normally cancel the right to passive suffrage, unlike being underage, not being a citizen or having a criminal record.
It must not be forgotten that the proposal of a candidate must be made in accordance with established procedures, but such formalities cannot be converted into a bureaucratic barrier that will limit the participation of those who meet the fundamental requirements.
Should the electoral administration not grant admission to a candidacy, it should be possible to appeal to a higher authority, which will consider the relevance of the deficiencies indicated impartially and in accordance with the laws. The decision of this authority must be timely, to enable the candidacy to run in the election, if approved, and not draw the electoral process out with exasperating delays.
There is no general rule concerning the nature of the authority that has to resolve these appeals. In some cases, it is simply a superior administrative authority. In others, it may be a body of the ordinary jurisdiction that will hear the matter. National cases in which the ruling is entrusted to the constitutional court are not unusual, as it is a fundamental and critical decision in the electoral process.
Throughout an electoral process one feature is constant--each new phase means the closing of the previous one, so that the deficiencies that were not alleged in the first phase cannot be proved in the next. This is required because of the very nature of the process, made up of a succession of stages in which a number of operations that will determine the subjects and the rights that will be in force in the following phase must be completed within very short periods.
The launching of the electoral campaign, therefore, means that all possible problems that emerged in the phase of proposing candidacies have been resolved. Likewise, any complaint that had not been lodged in the form and at the moment legally established during the campaigning phase, cannot be opposed at the time of counting the votes or when the results are announced. This is an essential principle throughout the electoral process--the preclusiveness of each phase. This means that once all the appeals have been resolved in the very short time limits set for this purpose in any one phase, any other defect not raised at the right time and in the right form is overridden by the next phase.
In the course of the campaign, conflicts of various kinds may arise involving such issues as existing public aid, the material activities of the electoral campaign, and the electoral surveys.
Each one of these poses its own peculiarities that have already been outlined in the corresponding sections (see Electoral Campaign). There is no uniform rule governing which authority should resolve the conflicts that may arise. In some systems it is the electoral authority, whether the designation is essentially the responsibility of the executive or of the legislative power, and it is of a predominantly administrative or judicial nature. What is indeed evident, however, is the need for the response of the authority to be immediate and feasible.
Whether it be the denial of a public subsidy for the campaign, the banning of an electoral meeting, the use of advertising contrary to the rules on veracity or respect towards the adversary, the decision will only be effective if it is swift and executed immediately. The same goes for the publication of an electoral opinion poll at a time when it can no longer be disseminated. Only the effective intervention of the media in which it
is to be published will guarantee the fulfilment of the electoral rules.
Possible conflicts during the physical act of voting are equally numerous, from the constitution of the voting stations, the execution of control and counting tasks, the correct identification of the voters to avoid illegal or duplicate voting, to being truthful about the vote count and the formalising of the records containing the results. However, the core criterion in the
resolution of the possible complaints or objections in this case is different. At this stage, equality in the use of the legal means is not what is sought, but, rather, deciding what validity a record with deficiencies should be granted or lose. The rule with respect to the ruling authority is equally variable, but in view of the material relevance of this phase--the casting of the vote--the tendency should be for it to be one of the highest rank and independence possible.
Regarding the material decision, it should preferably be made in view of the proportional gravity of the offence. It is not reasonable to nullify the voting at a voting station because an accredited representative may not have been present or because mistakes had been made on the voters list. But any suspicion regarding a number of illegal votes, or a count without the legal guarantee that it will be made known publicly, can have devastating effects on the acceptance of the electoral results. Likewise, as a general rule, the repetition of elections must be limited to voting stations or constituencies where the final results might in fact have been different, should all the impeded or nullified votes have been valid, or should the voting stations where voting had been nullified due to irregularities represent an equally significant number of votes.
The naming of the candidates-elect is the climax of the electoral process, therefore it must be subject to the greatest guarantees in the event it is impugned. Experience indicates that ruling on such objections be reserved to the highest ranking authorities, normally the legislative assembly itself or the court of justice at the same level as the elections, with the possibility of appealing to the superior judicial court or to the constitutional court where such authority exists.
With regard to the consequences of these disputes, the aforementioned principle of proportionality must be applied. It makes no sense to repeat legislative elections because irregularities in a rather insignificant number of constituencies may have occurred, both from a financial point of view and from the point of view of possible erosion to the legitimacy of the electoral results. On the contrary, it is preferable to maintain the results on what is valid and to extract the tainted results. If in spite of the nullified votes, the results would not have varied, the announcement that had been questioned, must be maintained. If the fraud was formal, but it is possible to determine which candidate has won, it is also preferable to avoid the repetition of the elections. Only when the number of irregular votes is so significant that the results may have been different, would repetition be preferable and proportionate.
In addition, the partial or overall objection to the electoral results must be governed by a special rule of responsibility on the part of the contenders. This is certainly the fundamental element of a basic consensus that must exist among them on the rules of the game. The legitimacy of the political system depends, to an extent that can hardly be exaggerated, on the fact that this acceptance occurs without unjustified formal or verbal objection or disagreement. For this reason, it is usually one of the core elements in the codes of conduct agreed upon among the parties or candidates to regulate an electoral process (see Legal Instruments (Doctrine/Theory)).
