The transparency of the electoral power

DOES THE NATIONAL ELECTORAL COUNCIL ACT IN CONFORMITY TO THE LAW?

1. On August 20, 2003 the opposition consigned in the National Electoral Council the signatures gathered on February 2, 2003 to request a Presidential Recall Referendum. The Council refused to accept the signatures alleging that they had been gathered in an "untimely" manner and that the wording of the Recall Referendum's consultation was inappropriately drafted. The opposition rejected these arguments, arguing that they were hardly of a legal nature and contravened constitutional norms and the Supreme Court's own decisions.

2. In view of the lack of norms regarding Recall Referenda, the Supreme Court adopted a decision stating that a Recall Referendum is not an election and granting the Electoral Council the power to regulate Recall Referenda. The Council based its decision partly on the Constitution, partly on the Basic Law of the Electoral Power (LOPE), and partly on regulations approved in 1999 by the Constituent Assembly, the so-called Public Power's Electoral Statute. On other occasions, the Council based its rulings on a number of Supreme Court's decisions or sentences and on the Basic Law on Suffrage and Political Participation. As was to be expected, this created a major confusion regarding the electoral norms to be applied.

3. On countless occasions the Electoral Council violated its own rules regarding Recall Referenda , (its terms and conditions, the adoption and retroactive application of criteria regarding the annulment of signatures following the gathering process, automatic processes, etc.).

4. This "flexibility" regarding the enforcement of laws during electoral processes was also apparent in the October 31, 2004 regional elections and the August 2005 local elections. In fact, during the October 2004 regional elections the CNE violated more than 10 Articles of the Basic Law on Suffrage and Political Participation (LOSPP). Many are the norms and regulations that the CNE has overlooked or applied at its discretion during electoral processes.

5. The delay in the publication of the norms regulating the Presidential Recall Referendum was widely criticized by many, including the Organization of American States (OAS) and the Carter Center. The data base of those eligible to participate in the casting of lots for the members of the electoral tables, the modifications to the electoral timetable, the voting centers and their number of electoral tables, the Electoral Register (RE) and, finally, the whole set of norms regulating the process, were not published in the Electoral Gazette (GE), or the National Electoral Council's Web page until shortly before the elections or even following them.

6. The Electoral Register (RE) that will be used in coming elections has not been published in the Electoral Gazette or any other information media, as required by Articles 96, 106 and 120 of the Basic Law on Suffrage and Political Participation (LOSPP). This denies voters the possibility of accessing the Electoral Register 60 days before the elections so that they may contest it, if need be, 30 days before the elections, as prescribed by law.

7. Currently the Electoral Council is carrying out, together with the National Government, a Special Identification Plan (Plan Especial de Cedulación). The law dictates that those officials participating in this Plan who are simultaneously overseeing enrollment into the Electoral Register are "auxiliary agents" and that enrollment through these agents must terminate six months before the electoral process. Therefore, any enrollment into the Electoral Register that takes place six months before an election must be viewed as illegal and must be rejected.

8. The National Electoral Council (CNE) intends to introduce electronic voting rolls, in violation of Article 122 of the Basic Law on Suffrage and Political Participation (LOSPP). This Article establishes that each electoral table shall have an electoral roll with ".blank space for the certification of the act of voting by each voter, another blank space for the voter's fingerprint and one more blank space for the voter's signature".

9. The use of electronic voting rolls implies the following: (1) It violates the right to voting secrecy. Both the voting rolls and the voting machines are electronic equipments that by definition store information (sequence and time of transaction) that can be accessed to disclose voters' choice upon checking data; (2) it grants the CNE the possibility to alter the electoral rolls at any time, even during the act of voting; (3) it confers the CNE the possibility, following the act of voting and prior to the printing of the rolls, of including votes that were not cast and eliminate those who were, without leaving any trace; (4) it grants those who have access to the information the advantage of knowing in real time who voted in each voting center.