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Guaranteeing a Free, Fair Vote In Latin America

Courting the Vote: Electoral Courts and Councils Take on the Challenge of Guaranteeing a Free and Fair Vote Throughout Latin America

It’s voting season in Latin America, and as controversy in Venezuela and strife in Haiti has revealed, managing the elections is a complex challenge that has rarely been met by regional governments. The bodies charged with administering the ballot in this maelstrom of difficulties are frequently controversial, and sometimes guilty of ineffectuality that leads to greater conflict. Haiti’s Provisional Electoral Council (CEP), is one such example. Yet these electoral bodies are at the very marrow of the region’s move from the faux democracies of the past, which were marked by limited participation and self-serving politics, to authentic democratic practices which enfranchise and empower all segments of society, and the councils are often the only hope for institutionalizing both the procedural and cultural elements of this transition. This movement for enhanced democratic practices, which ostensibly the U.S. supports, is occurring as Washington’s political and possibly economic ties to the region are rapidly deteriorating.

A Jagged Landscape
Over the past six months, seven countries have held either legislative or presidential elections, and ten more ballots are scheduled to take place in 2006. In a region historically devoid of strong institutionalized democracies, this explosion of voting is striking, to say the least. Toss in a citizenry increasingly applauding their own leaders who have turned from Washington as the fount of authenticity and wisdom, and towards home grown populism inspired by the likes of Venezuela’s Hugo Chávez, and the stage is set for electoral dramas capable of rivaling the Florida phase of the 2000 U.S. presidential race. The chad-addled fiasco that landed that election in the Supreme Court was a bizarre event, and for most Americans the concept of aggressive judicial intervention in the democratic process was even more disturbing, as it seemed to be calculated politics, rather than blind justice. Yet in the Western Hemisphere, the United States, with its deeply rooted electoral practices, is in the minority. South of the Rio Grande the concept, let alone the practice, of authentic democracy often dates only to the 1980s, not the 1780s, and the region’s young, quasi-democracies often are laden with procedural and substantive difficulties that make the 2000 U.S. presidential outcome seem almost routine.

Over the past two decades, as Latin American societies have struggled to consolidate the cultural and institutional requirements for free and fair voting, electoral courts and councils have come to play an increasingly important role in legitimizing and institutionalizing the democratic process in a region where the legacy of such procedures is famously weak. Born of a historical tradition more often symbolized by unlettered caudillos than Jeffersonian philosopher-kings, these electoral bodies are more often as fragile and personalistic as the democratic process they are meant to protect.

The history of electoral bodies in Latin America is varied. Some, like Mexico’s Federal Electoral Institute date to the 1980s when democratization movements sparked a push for greater accountability. Others are updated versions of preexisting bodies, such as Venezuela’s National Electoral Council (CNE), which was established in 1999, replacing the 63 year old Supreme Electoral Council. Their mandates are usually broad, encompassing a range of tasks from tallying votes to monitoring campaign advertising, and are intended to advance both cultural and structural aspects of open political systems.

As issues of disenfranchisement, as well as poverty, come to the political forefront in, for example, Peru and Ecuador, the strength of Latin American democracies will be tested. Electoral courts can help ensure smooth and unchallenged balloting, stabilizing countries that are beset by political tension. Yet as crucial as these bodies are for nurturing fledgling democracies, the 2005-2006 electoral confluence has cast a harsh spotlight upon the functioning of the courts, and reveals that they frequently wield their gavels in less than certain or qualified hands, and do not always rule for high-minded purposes.

Ties that Bind – Venezuela’s CNE
Maintaining neutrality on the rough and tumble political playing field which increasingly characterizes Latin America’s political processes has proved difficult, and nowhere has that challenge been greater than in Venezuela. Since Hugo Chávez gained the presidency in 1998, the number of registered voters in the country has grown from around 11 million to nearly 14 million, and the electoral process has become the flashpoint for increasingly acrimonious domestic political disputes. This became clear in the events surrounding Venezuela’s December 4, 2005 legislative elections, in which the structure of the country’s electoral authority came to be perhaps the most significant campaign issue.

Orchestrating elections in a sharply polarized climate such as Venezuela requires a deft touch, which the National Electoral Council (CNE) has struggled to cultivate. While the body has more or less successfully managed six ballots in the past six years – including a high profile 2004 presidential recall referendum and a contentious 2005 parliamentary election – and each was validated as fair by international observers, the opposition has frequently charged that the CNE is less than fully autonomous from the Chávez government. These allegations, while generally regarded as sour grapes, have not been effectively countered, and there does appear to be at least some basis for concern over the body’s impartiality.

Much of the controversy currently swirling around the CNE stems from the ad hoc manner in which its makeup was determined. According to the 1999 constitution which established the CNE, its five members were to be nominated by civil society and then to be confirmed by a two thirds vote in the National Assembly. The administrators were prohibited from having a political affiliation, a change from earlier versions of the body which included representatives from each major party, as well as independent members. The resulting body was comprised of professors, lawyers and doctors, but the lack of clear political affiliations certainly didn’t eliminate controversy.

In the runup to the 2004 referendum, however, the Assembly was deadlocked over the candidates for seats on the CNE, forcing the Supreme Court to override the stalemate and appoint its members. While all sides lauded the decision at the time, an increasingly virulent opposition soon began to challenge the legitimacy of the body. The results of that eventual referendum – which reaffirmed Chávez’s mandate – along with the CNE’s procedures, were internationally validated. Nevertheless, the head of the Carter Center’s observer mission, Jennifer McCoy, noted in an Economist article that, “the CNE's lack of openness, last-minute changes and internal divisions harmed public confidence in that vital institution both before and after the vote.”

Since 2003, the CNE’s directorate has not been regularized, a situation which has begun to erode its standing, and in the 2005 parliamentary elections, the issue of the CNE’s impartiality reached near crisis levels. Opposition parties, conscious of their own political weaknesses, focused their campaign energies on attacking the CNE rather than building a free standing respectable platform. Their allegations were twofold: first they targeted the composition of the court, which they asserted was both unconstitutional and biased, with opposition leader Henrique Salas announcing that “it's evident that we Venezuelans have the right to vote, but not the right to elect. We vote, but the National Elections Council elects.” Second, they criticized the newly introduced electronic voting system, questioning its secrecy and suggesting that it might allow ballots to be matched with voters. In response to that concern, the CNE couldn’t have been more responsive, following international recommendations by restructuring the system in order to eliminate the controversial fingerprint scanners.

The legislative election itself ended up being a bittersweet victory for the government, as the opposition parties withdrew, almost certainly because they were was destined to lose anyway, leaving chavista candidates to triumph in uncontested races across the country, albeit with a near 75% voter abstention rate. OAS and EU observers in the country noted that the CNE had efficiently carried out the technical aspects of the ballot and that there was no evidence of fraud or malfeasance whatsoever, which collided with the opposition’s pre-vote histrionics. Both sets of observers, however, did include in their reports a recommendation that the CNE be seriously revamped, as the persistent questions about its legitimacy and impartiality, however unwarranted, had created widespread apathy and skepticism in the electorate and tarnished the perceived value of political participation. The ongoing need for international observers – they are automatically re-invited to the country by the Chávez administration to monitor scheduled elections – suggests a general unease over the electoral process and a belief that the CNE alone is not a fully capable guarantor of free and fair ballots in the country. Until the CNE is able to effectively legitimize its impartiality in the administration of the electoral process, that body will serve, at least in perception, as an ongoing thorn in the side of Venezuelan democracy.

Counting on Failure – Honduras’ TSE
Despite its controversial makeup, Venezuela’s CNE has been widely viewed as a reasonably competent administrator of the electoral process by international observers. The same cannot be said, however, about Honduras’ Supreme Electoral Tribunal (TSE). That body, which operates in a far less tendentious atmosphere, recently stumbled badly in its management of a closely contested presidential election. The precipitous fall was uncharacteristic in its magnitude: a Honduran civic association labeled the 2005 elections as the worst since the end of the country’s dictatorship 25 years earlier.

In the months preceding the November 2005 presidential election, the TSE – through various cooperation agreements – requested massive amounts of foreign aid to help facilitate smooth election processes, eventually receiving around $5 million from Japan and Sweden. The funds were earmarked for projects including voter information campaigns and ensuring that polling places were adequately equipped. Additionally, the TSE, aided by Brazil, embarked on an $8 million overhaul of the computer system, with the hope of providing a quick initial vote tally. Officials hoped that the system, known as the TREP (Transmission of Preliminary Electoral Results), could offer an accurate picture of the standings by 6:00 on election night.

Similar mechanisms had been employed since 1997, and despite administrative problems, had not suffered any major meltdowns, and it was expected that a combination of experience and improved equipment would enhance the TREP’s functionality in the hotly contested 2005 presidential elections. TSE officials anticipated that by distributing an accurate electoral snapshot they would be able to ease the tensions surrounding what was seen as being an extremely close race for the presidency.

These hopes quickly unraveled on election night however. With only 40 of the 1,618 TREP stations reporting (less than 3%) by 10:00 PM, four hours after the time when initial figures were slated to be released, it was clear that the count was not going smoothly. With the TREP clearly non-functional, the TSE turned to reporting the results of a backup system for a preliminary tally, which relied on a quick poll rather than hard numbers, an action which “provoked tension and uncertainty,” according to the Venezuelan newspaper El Universal.

Several factors would later be blamed for the TREP’s struggles. The Tegucigalpa daily La Tribuna noted that the TSE’s last minute decision to dismiss a large number of staffers who were reportedly affiliated with the ruling Partido Nacional, served to create confusion, and that their replacements were prone to “improvisation” in the filing of TREP reports, which inevitably led to irregularities that hindered the system’s reliability.

Undaunted by their faltering system, electoral officials defended the early results as accurate, and TSE President Aristides Mejía seized upon the flimsy numbers, showing opposition Partido Liberal candidate Manuel Zelaya leading by around 5%, to declare Zelaya the victor. Mejía, also of the Partido Liberal, succeeded only in inflaming tensions with this premature proclamation, and he was quickly forced to retract, leaving the country to anxiously wait for a definitive result.

The breakdown of the TREP was symptomatic of the entire process. With a sharply polarized nation watching, the vote tallying dragged on. A week after the election, with officials still unable to declare a victor, the TSE was forced to transfer the tabulation operation from the hotel suite they were occupying, as it had been previously reserved for a wedding party. Not long after, the Partido Nacional candidate decided to concede defeat, with nearly complete results giving his opponent a four point lead. Post-election reports would cite not only administrative flaws, but also note that Mejía’s party affiliation may have complicated the process. Fears over the potential politicization of the TSE, however, were not substantiated by claims of fraud or tampering, although Mejía was eventually appointed Defense Minister under Zelaya.

Legislating Respect – Mexico’s IFE
If the electoral councils successfully navigate the region’s administrative and political minefields, they may still find their objectives sabotaged by less than fully committed democratic political figures. Mexico’s Federal Electoral Institute (IFE) is a prime example of how politicians’ continual disregard for the institution have eroded its legitimacy and effectiveness, and has cast doubt upon its ability to guarantee transparent electoral processes in the runup to next summer’s presidential election.

Of all the electoral courts in Latin America, the IFE may perhaps carry the most difficult historical burden. Under an authoritarian system that was legitimized and sustained by consistently fraudulent, yet nonetheless regular, sexennial presidential elections, the Institutional Revolutionary Party (PRI) ruled Mexico for seventy one years prior to losing the presidency in 2000. But the democratic opening which permitted the pro-business opposition National Action Party (PAN)’s victory in that year’s presidential ballot, did not fully eradicate deeply rooted vices, including electoral corruption, and it is this lingering culture of disdain for democratic practices which the IFE must now confront.

Early in its history, the IFE was itself part of that legacy of twisted democracy. The electoral commissions that preceded it were the pride of the PRI’s political machine, although with no autonomy from the executive branch. The IFE, established by President Carlos Salinas in 1990 as a palliative for the social discontent generated by the blatantly fraudulent 1988 presidential election, began its existence serving as little more than a rubber stamp, routinely validating automatic government victories, despite its now chartered independence from the state. Over time, and under pressure to democratize, the state slowly granted the body driblets of necessary autonomy. Now it is composed of 22 members, including an independent and nonaffiliated nine member executive board, much like Venezuela’s CNE, as well as representatives from six political parties and other organizations. While its legitimacy is now unchallenged, questions still remain over its ability to serve as an effective mediator in Mexico’s brawling political arena.

In an effort to level the playing field for the 2006 presidential election, the IFE declared a “Christmas truce,” banning candidates, pre-candidates, and political parties from engaging in any campaign activities from December 11 to January 18. The suspension was structured around the registration period for presidential candidacies, and was intended to ensure that no individual campaign would disproportionately benefit from an earlier starting date.

Yet almost immediately after the truce’s promulgation, there were allegations that it had been broken. Felipe Calderón, the ruling PAN party candidate, was accused by the opposition parties – both the PRI and the leftist Democratic Revolution Party (PRD) – of violating the IFE’s restrictions by meeting with the press at a theater event. A spokesperson for the PRI noted in an official complaint before the IFE that, “it appears to me that there is attitude among some that encourages the violation of the spirit of the truce.”

Calderón, and the Fox government, were repeatedly charged with breaking the agreement, with PRD director Leonel Cota lamenting that both had spent millions on theoretically prohibited media placements during the truce period. The capstone to the affair came when Fox, in an interview with Mexico City newspaper El Universal, blasted the Mexican left and asserted that the country had matured past the populism of earlier eras. While making no mention of either the PRD or that party’s candidate – the favored Andres Manuel López Obrador – Fox’s comments were clearly aimed at discrediting the popular left-leaning candidate, who currently holds a slight lead over Calderón. In the face of these apparent violations, the IFE refrained from issuing any sanctions, leading Cota to dub the effort a truce “lite.”

Fox’s ongoing interjections in the race, and his campaign efforts both for Calderón and against López Obrador, echo past abuses, yet have not yet provoked sanction or comment from the IFE. Yet the problems plaguing the body cannot be pinned solely on a lack of will. Mexican politicians – for whom democracy is not an established tradition – cannot be expected to voluntarily abide by decrees aimed at promoting fairness. The system fails because it has incomplete enforcement mechanisms, and cannot easily coerce deference.

Traditionally, the electoral watchdog has been empowered to levy harsh fines on misbehaving political parties, particularly when they exceed campaign spending limits, as the IFE did in on January 27, 2006, when it fined the PRI 57 million pesos for irregularities during a 2003 campaign. While it is also permitted to enforce harsher punishments, including the suspension of a party’s political registration, such measures are clearly beyond what the IFE ordinarily is willing to impose, except in extreme cases. The uncertain enforcement of its own, sometimes cripplingly vague, guidelines, has only hastened the deterioration of the IFE’s effectiveness as a regulatory institution. With a modest fine being the worst foreseeable consequence, politicians are effectively permitted to play fast and loose with the rules and are only checked by their own scruples, or lack of them.

Nursemaids of Democracy
Latin American political systems face a myriad of challenges as they transition from an authoritarian past towards a hopefully democratic future. With new social movements leading to a widespread expansion of electoral participation, the stakes in modern political campaigns are now greater than perhaps ever in history, and the newfound significance of elections has made campaign competition into an intense, winner-take-all scenario. While the new value now placed on the ballot is encouraging, the risk remains that less-than-democratic procedures will take hold, undermining the political gains of the past two decades.

The task of ensuring that this disintegration does not occur, belongs almost solely to the region’s electoral organs. And while such institutions are far from unblemished, and they occasionally make humiliating missteps, they are an unavoidable piece of the political landscape and have more often than not served as a positive influence. Despite charges of partisanship, Venezuela’s CNE has successfully administered several fully transparent elections. If Honduras’ TSE botched its attempt at providing accurate preliminary results, it nevertheless eventually provided an unimpeachable tally which clearly confirmed a surprise opposition victory. And while Mexico’s IFE is frequently criticized for ill-conceived and under-enforced initiatives, the attempts have lent a degree of restraint to the country’s historically rowdy political processes, making some of the actors a tad more honest than ordinarily would be their inclination.

These three cases illustrate both the importance and weaknesses of Latin America’s electoral courts. On one hand, they have gained remarkable significance since the fall of authoritarian regimes in the 1980s and 1990s, and today are frequently making more important contributions to the institutionalization of democratic political systems than would have been anticipated. Yet simultaneously, they are themselves underexperienced, and often falter at key moments. Too frequently they are indecisive, giving voters reasons to doubt their credibility, and thus the authenticity of the entire electoral system. Their capacity is further eroded by politicians who are less than fully committed to democratic practices, and who are prone to dance around regulations which have been fitfully being established by the fledgling courts.

Democracy’s return to Latin America has been a slow process, requiring profound changes, not only to administrative structures but to social consciousness as well. In this maturation, electoral courts are vital, as they themselves offer an accountable source for guarantees that elections will be clean and fair. And in spite of frequent fumbling, most of the electoral courts throughout the region are doing a pretty decent job, considering that they, like the politicians and voters, along with Washington policy makers, are just beginning to learn how to co-exist with Latin American democracy, both on election day and in daily practice.

This analysis was prepared by COHA Research Fellow Michael Lettieri

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