In Tight Elections, Annulling Votes Can Change the Results

This experienced Nicaraguan election observer appraises elements of the electoral process so far and offers some cautious but considered projections of what might happen on and after election day.

Roberto Courtney

Citizens who participate in elections normally judge them as good or bad based on whether their favored candidates won or lost. For electoral observers, however, who wins and who loses is irrelevant.

Observation stresses the quality of the process and respect for the people’s decision. Technically appraising the quality of an electoral process requires comparing it with previous national elections and with international norms or parameters, bearing in mind that the most relevant aspects in determining its quality are the voting conditions on election day, the count, the data transmission, the resolution of any legal challenges and the assignment of elected seats. While all these elements still lie ahead of us in this year’s elections, our preliminary judgment as we move into October is “cautiously positive.”

It’s positive because the indicators that are measurable so far—voter registration, accessibility of voting stations, freedom to campaign, freedom to present candidates, etc.—are better here than in the rest of Central America, and even slightly better than elsewhere in Latin America. And comparing them with the same indicators in the 2001 general elections, virtually none is worse this year. So, if those elections were good, so are these… at least so far.

But it’s cautious because we know the political composition and record of the Supreme Electoral Council (CSE). Its top leadership posts are divvied up between two parties—the Constitutionalist Liberals (PLC) and the San-dinista National Liberation Front (FSLN), with the latter currently in the majority. This party-based control has generated suspicions in recent elections and now four of the five parties running have stated that they don’t trust the CSE enough to accept its verdict alone. They want the process verified and validated by independent electoral observers. This explains the large number of national and international observers, who will provide the parties distrustful of the CSE with what they see as a trustworthy perspective.

Despite the CSE’s political problems, it must be acknowledged that it has been developing a solid technical capacity. When the elections for the Caribbean coast’s regional authorities were held in March, the CSE magistrates hadn’t even been able to sit down at the same table for a month and a half, with one or another of the two bands boycotting sessions to sabotage the other. But this didn’t prevent the CSE from organizing such a good electoral event that all the preceding political controversy evaporated. That experience proved that the electoral branch of government in Nicaragua is technically efficient and the administrative and logistical aspects would function well even if the magistrates stayed home.

Voter registration shows no political bias

Technically, the bottom line is in the black with respect to voter registration. In the 2001 elections, 75% of the eligible voters had their ID/voter card and were ready to vote by the close of the registration period. In these elections it’s up to 85%, which is one parameter for stating that registration is going well. Another is whether the other 15% has been the victim of some ideological bias or disproportionately affected by a particular political party.

In the end, what can we say about the 15% that doesn’t have a voter card? Is it due to some sort of political exclusion? Is it true that the PLC and FSLN manipulated things to favor the registration of their sympathizers? That suspicion was first triggered by the fact that the CSE’s municipal delegations were closed for three years and registration was conducted through these two parties. Nonetheless, audits done by Ethics and Transparency revealed entirely different factors: people are less like to have an ID/voter card the younger, poorer and more rural they are. In other words, it takes money to get one and rural youths are the least able to afford the various steps involved. The younger generation also appears less interested and more distrustful of politics We really didn’t find a political skew, and thus consider voter registration to be acceptable.

The voting system isn’t bad either

Nor can we seriously criticize the ease of voting. In other parts of Central America people have to go to the municipal seat to vote, so the political parties take them there on buses, give them a pep talk, breakfast and some lunch money, then take them back home after they get through the line. This would be scandalous in Nicaragua, where the polling stations are local; they’re no more than six blocks from the voter’s house in the urban areas and two kilometers away in the rural areas. Each polling station posts its voter lists, and any voter whose name isn’t found on the list of the place they have traditionally voted are entitled by law to vote at the one closest to the address on their ID card.

We struggled in the Caribbean coast elections to ensure the application of articles 41 and 116 of the electoral law, which established that modality; and we won. The CSE had to be forced not to repeat an error that violated the law and would have embroiled it in unnecessary controversies. Why was it an issue? Because before the 2004 municipal elections there were three ways of voting: at the polling place where one’s name appeared; at the polling place closest to one’s registered home address; and—thanks to an invention by the PLC when it controlled the CSE—at any polling station in the country as long as two witnesses would certify that the voter lived in that area. Combining the first two methods offered the possibility of voting in two places tops, but at least that was somewhat controllable. But the third one, in addition to being illegal, made it possible to vote in any of the ten thousand or so polling places around the country you could get to in a day because the PLC stationed two “witnesses” in almost every one of them. This generated a real risk of large-scale voter transfers and double voting.

By the 2004 municipal elections, however, the FSLN had gained control of the CSE, and it eliminated the latter two methods with a stroke of the pen, even though the choice of voting closest to one’s registered address was both clearly stipulated in the law and necessary. In those elections many people went to the polling station they were accustomed to, whether or not they appeared on its list or it was even close to their home, expecting to find the two “witnesses” waiting for them. When they discovered that things didn’t work like that anymore they started scurrying from one polling place to another looking for their name.

The audits we did of the voter rolls showed that this phenomenon occurred not because many voters’ names had suddenly, unbeknownst to them, been removed from the list where they traditionally voted, but because the CSE had eliminated two voting mechanisms that people practiced without ever having to check where they should vote. Our struggle in the Caribbean elections earlier this year recovered the voters’ ability to vote in the polling station closest to their registered address, even if their name doesn’t appear on its list for some reason.

Candidate registration and financing

It’s also positive that no candidates were refused the right to run, although the late Herty Lewites was among the candidates who feared the CSE might resort to that. We can say as well that the campaigns are unfolding normally, although always with their inevitable superficiality and level of insults and disqualifiers.

We are, however, observing major financing deficiencies, which exist virtually everywhere, although to a lesser degree than in Nicaragua. The issue of money in politics hasn’t been resolved satisfactorily in any country and we have important problems here: financing from abroad is permitted; no cap is put on donations; and anonymous donations are allowed. It is therefore possible to receive direct, unlimited and anonymous support from foreign governments. The few regulations that do exist are applied to the party, not the candidate, and even then only for the 75 days of official campaigning, not the other 290 days of the year! This last issue is very important, but is not being addressed. We’re in good shape compared to international levels on the issue of state financing, but we’re at the bottom of the barrel with respect to the transparency and regulation of private and foreign financing.

Last but not least, election observers

Both national and international observers have full access to these elections. Four of the five parties competing in the November 5 elections have insisted on observation as a condition for their acceptance of the results. In addition to having a right to do so, it has to be recognized that observation is no longer exclusive to elections in third world countries. In Europe, the Organization of Economic Cooperation and Development has an agreement that establishes observer missions from all countries in each member country’s elections, and all countries have the right to offer technical recommendations.

Ethics and Transparency participated as a member of an observer delegation for the US presidential elections in 2004. As Nicaraguans, we’ve observed elections in 20 countries on three continents. Observation has become a generalized phenomenon due to the need to learn from others and so that others can certify a country’s democracy. There’s definitely now a “club of democratic countries” and if the definition of democracy is the holding of elections in acceptable conditions, it’s no longer enough for the country itself to hold them and then announce that they were democratic. Nowadays, others have to certify that they fulfilled the membership requirements of the “democracy club.”

What might we expect?

This year’s presidential elections could be close. And the closer they are, the more magnified the technical and political problems will become. To the contrary, if the results are clear and the differences significant, any technical and political problems pale into insignificance against a resounding popular will.

In 1996 the difference between the winner (the PLC with Arnoldo Alemán) and the runner-up (the FSLN with Daniel Ortega) was 15 percentage points. In those elections, over 500 polling places were annulled around the country because of uncertainty about the roughly 300,000 votes involved. Those disqualifications led to Daniel Ortega’s accusations that he had been robbed of the victory through fraud. But to know who has won, observers look at the quality of the process in its context. With a 15% difference between Ortega and Alemán, the 300,000 annulled votes wouldn’t have changed Alemán’s victory even if all of them had been for Ortega. In tight elections, however, small problems or calculated fraud could mean the difference between winning and losing.

There’s a curious thing about that allegation of fraud, by the way. Mayors were also elected in 1996, and the 80,000 annulled votes that corresponded to the capital would have made the difference in its mayoral race because PLC candidate Roberto Cedeño (PLC) beat out FSLN candidate Carlos Guadamuz and independent candidate Pedro Solórzano by only 13,000 votes. In that case, the irregularities were greater than the margin of victory, yet the FSLN only alleged fraud in the presidential elections. Not a word was said about Managua’s elections—possibly, as history later suggested, because the party was no longer interested in Guadamuz being mayor by that time. This demonstrates how political parties act according to their particular priorities and logic, often independent of the arguments they put forward.

Speculating on scenarios and strategies

It seems much more likely than in previous elections that this year’s results could be very close, which means that the political logic of those dominating the electoral stage could be revealed the same day. What form might it take? Let’s speculate a little, since imagining scenarios and strategies is part of electoral observation’s preventive or revelatory work.

The first thing to be considered in making forecasts is that Nicaragua now has an electoral history, which allows us to see how people have voted in each department, municipality and even neighborhood and polling place since 1990. It is thus possible to calculate that, given the difficulty and enormous conspiratorial sophistication involved in identifying and eliminating voters one by one, parties are far more likely to identify polling stations in which the voting has historically gone against them in order to keep a close eye on them, or, worse yet, to make legal allegations that could provide grounds for requesting the nullification of adverse results.

The limits of vote annulling
in presidential elections

The good news is that it is virtually impossible nowadays to pull off a fraud that radically reverses the results. It’s very difficult to alter them in the counting process, given the watch-dogging by rival party monitors. The system itself leaves hardly any room for manipulation, thus generating a crucial degree of certainty. It has reached the point where only elections that are virtually tied can be “stolen,” and then only in the form of legal challenges to annul votes already deposited and counted. In such cases we enter the era of manipulating electoral results through legal flimflammery. So, bearing in mind the voting history of the polling stations, it won’t be the vote count itself that matters, but rather whether the results of a given polling station are accepted or not. The parties will be ready with their legal challenges to annul stations with adverse results, which explains their dispute with the CSE over the new mechanisms establishing the conditions by which an entire polling station can be annulled.

There’s no way an election result can be “adjusted” via legal challenges if the difference is sizable, say 70-30, or even 51-49. In fact, even when the difference is as slim as 1%, it’s not easy in a presidential election. When you think about it, Nicaragua has 3.5 million registered voters, 3 million of whom typically vote. And since they do so in thousands of polling stations averaging only about 400 voters each, you’d have to annul a hefty number of them just to eliminate 30,000 adverse votes and close that 1% gap, not to mention reverse it. You would inevitably be eliminating your own votes while you’re at it, but the game would be up immediately if you tried to cut corners by annulling only those polling stations where your candidate lost by a landslide.

Altering the results for legislative
candidates is a lot more feasible…

So it’s very unlikely that annulling 20-30 polling stations could make the difference in the presidential election results, or even the 20 national representatives to the National Assembly. But that’s not the case for the election of the departmental representatives. There everything changes, because the number of voters drops significantly.

Nicaragua has several departments whose overall voter list only has around 80,000 names, and those departments are only allocated 2 to 3 representatives. In such cases, annulling a couple of voter stations can make the difference between a candidate winning or losing if there’s a 1% spread, because we’re only talking about 800 votes. That’s what happened in Granada in the 2004 municipal elections, where the FSLN succeeded in annulling a single polling station, in which APRE had won by 100 votes.

So what exactly happened? At that time the CSE regulations said that a polling station could not be annulled as long as at least one of its six tallies was reliable. In the annulled station in Granada, however, all tallies by the three table officials and their alternatives had identical results and were reliable, with the exception that the FSLN party monitor hadn’t signed one of them. That was enough for the CSE to rule in favor of annulling the station’s entire results, even though it could have chosen any one of the other tallies as reliable, thus handing the victory to APRE—the forerunner to today’s ALN. In other words, all the votes were eliminated even though there was no controversy about the counting or the final results. By disqualifying the whole station’s results, the FSLN won the mayoral seat by 10 votes.

Ethics and Transparency charged that the annulment was fraudulent. In virtually tied elections the legal mechanism of annulling whole polling stations can by definition be considered fraud because it nullifies the popular will expressed in the affected polling station and compromises the final overall results.

Similar attempts will probably be made this year to swing the results in the departmental legislative elections by filing legal challenges to annul certain polling stations. Nicaragua’s legislative candidates are elected by party slate rather than voting for individuals and the party wins seats through a mathematical quotient system based on each department’s total number of votes and total number of seats. Once a party has been allocated seats by the number of full quotients it won, any remaining seats are awarded to the parties with the highest number of “leftover” votes. It’s almost certain that the last seat awarded in each of the departments and autonomous regions will be decided by a handful of votes, making annulling votes and even voting stations both feasible and tempting.

…and it’s just been made a lot easier

If legal challenges are so important to altering the results, the country needs a regulation that would make it difficult to annul whole polling stations and that clearly establishes the criteria, procedures and circumstances for doing so. Yet in response to the Granada experience, where the CSE violated its own regulations to annul a junta just to suit the FSLN and PLC, it has just simplified what should be hard and muddied what should be clear. It’s now easy for a party monitor to request the annulment of a polling station while the criteria to be employed by the CSE magistrates judging that request are vague. In other words, the CSE has drawn up the new norms in such a way that the annulling of polling places could now alter the popular will without violating the regulations.

For example, it’s enough for a monitor to rip a tiny corner off of his or her own tally or, as we have seen, not to sign one of them. Adding insult to injury, the unappealable power to decide the merits of a suit to annul a polling station is in the hands of the very CSE magistrates who wrote the norms and who all happen to be loyal to the two major parties. While any monitor from any party is entitled to request that a polling station be annulled, the CSE magistrates make the final decision and three of the five parties have no part in that decision-making process. They thus have every reason in the world to prioritize their fear of this mechanism.

Parties are more likely to scuttle
an ideological ally than an adversary

Another interesting revelation about the type of fraud that took place in Granada is that when push comes to shove, parties in any part of the world act very differently than the citizenry would imagine or expect based on supposed ideological affinities.

In a fight over legislative or mayoral seats, for example, each party would prefer to benefit its ideological adversary over a party on its own side of the ideological fence in order to retain its “voter market.” The Nicaraguan Liberal Alliance (ALN) is competing with the PLC for hegemony over a segment of voters, and its priority is to control that market, to become the standard bearer of anti-Sandinismo. Granada demonstrated that the parties essentially see the rival competing for their own electoral market as their main opponent, particularly if numerous posts are at stake. Only after securing that market do they set their sites on their ideological adversary. They’d rather favor that adversary when possible, since it will then owe them a favor they can call in during a controversy over another seat in another electoral district.

The likely problem here
will be poor quality elections

In conclusion, it’s impossible under current conditions to steal an election that has been clearly lost, but it becomes possible if there’s a virtual tie. And it doesn’t happen during the counting, which usually goes reasonably well these days. Nor will it depend on whether monitors from all parties are present or not, because the maneuver would be too evident if the only ballots annulled during the count are in polling stations where the affected party had no monitor. The only mechanism with real promise is the annulling of whole polling stations, particularly given that the current norms for challenging the validity of polling station have just been made extremely easy.

The problem in the November 5 elections is less likely to be squabbling over genuinely close results, as happened this year in Mexico, Peru and Costa Rica, because that’s manageable. The problem, almost by definition, will be elections whose poor quality buttress nullity suits. The best antidote to post-electoral controversy is an exemplary election event that leaves no pretext for politically motivated lawsuits. And it’s that quality that we observers are working to guarantee.

If the results are really close and “adjusted” through lawsuits, would that be considered fraud? We national and international observers hold periodic meetings and have agreed that what happened in Granada in 2004 should have rightly been called fraudulent, because on top of altering the popular will, the CSE violated its own regulations. The petition to nullify the results was based on a technicality and not that the voting conditions raised any doubt over the voters’ intent.

The new regulations permit nullities for any reason, leaving it entirely up to the CSE magistrates’ “wisdom and independence” whether or not to annul. This makes it harder for the international observers, whose work centers on observing whether the law is obeyed. They can only recommend changes if the law’s no good, , but they can’t oppose it, even though we all know that laws aren’t divine but human, designed in line with human beings’ political interests. And even though we all know that no law is more political than an electoral one.

So what can be predicted? That if the results are close there will probably be enough lawsuits for the CSE to be tempted to make the adjustments it deems convenient according to the interests of the parties that dominate it. Will that delegitimize the elections? We need to remember that just as the CSE will make politically-based decisions, the political parties that have no faith in the CSE will also be judging the process politically. That could tie the CSE’s hands a bit, preventing it from going as far as it might like, because the price of overstepping the mark is to risk delegitimizing the elections as a whole and having to repeat them in six months.

I believe that the parties will consider all this before letting lawsuits and final resolutions get out of hand. I hope we have elections and an allocation of legislative seats that closely reflects the popular will… although in the land of the Güegüense anything is possible.

Roberto Courtney is the executive director of the Ethics and Transparency Civic Group, the most experienced Nicaraguan national and international electoral observation institution.

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