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OAS Electoral Observation Mission Expresses its Concern for the Extreme Judicialization of the Electoral Process in Guatemala

  July 2, 2023

The Electoral Observation Mission of the Organization of American States (OAS/EOM) for the general elections in Guatemala has followed up on the positions and petitions of the secretaries of nine political parties, which have resulted in the recent resolution of the Constitutional Court (CC) ordering the suspension of the process of allocation of offices, along with an additional review and comparison of the statements of polls not contemplated in the legislation.

According to the Electoral and Political Parties Law (LEPP), the ordinary mechanism to request the review of the count of votes in the Guatemalan electoral process is through the challenge of votes made by the political parties' delegates at the Polling Station (Junta Receptora de Votos, JRV) for irregularities or anomalies that may arise during the voting and counting. These challenges must subsequently be ratified before the corresponding Departmental Electoral Board (JED), in the respective review hearing. According to the legislation, the scrutiny review hearings must be held no later than five days after the voting. It is in that opportunity that the causes of challenge must be verified through the respective examination of the votes, or their recount, as appropriate according to the reason for the challenge.

Considering the above, the OAS/EOM reiterates that it observed a high presence of political party delegates in the JRVs visited on June 25, which was also verified by other national and international election observers. In the overwhelming majority of the JRVs observed by the EOM/OAS, at least four political groups were represented by their delegates at all moments of the voting (opening, midday, closing and counting).

Despite the high number of party delegates, the total number of challenged votes was relatively low, meaning that the political organizations themselves found little to challenge on election day. For example, in the presidential election, less than 0.01% of the votes cast were challenged. The Mission wishes to emphasize that some of the political parties that are now seeking, through injunction (amparo) proceedings, to challenge the election results were precisely those that had the greatest presence of delegates at the voting tables on June 25.

The Mission reiterates that the statement of the polls that have given rise to challenges represent isolated cases that do not alter the preferences expressed at the polls for the second round of the presidential election. After a meticulous work during the voting day, the OAS/EOM concludes that there is no reason to suspect that there were irregularities of such dimension that could affect the electorate's choices in the Presidential race. Once again, it emphasizes that the preliminary results reported by the Supreme Electoral Tribunal (TSE) coincide with those gathered by the OAS/EOM and the EOM-Gt.

Although the Mission recognizes that, as stated in the resolution, the CC acts with the intention of "guaranteeing the purity of the electoral process and that the republican, democratic and representative system is not undermined", it also expresses its concern regarding the decision of the CC to admit the appeal and decree the provisional injunction, since, as the CC itself recognizes in the decision, it corresponds to the Supreme Court of Justice to hear the case, according to Article 12 of the Law of Amparo, Personal Exhibit and Constitutionality. Likewise, it is surprising that a new review process is decreed, when the review foreseen in the law has already been completed and the terms and procedures of the law have elapsed. The resolution of the CC contemplates the possibility of challenging even in instances where no observations were raised at the polling station, opening the possibility of questioning the process in a more general way and sowing doubts where there are none.

Previous OAS Missions had issued statements on the high judicialization of the Guatemalan electoral process. This situation is now worsened by the instrumentalization of justice to seek the invalidation of an election that on Sunday June 25 registered the will of the people. The challenge mechanisms in a democratic electoral process must be exhaustive and definitive, a fundamental principle to give citizens certainty that their voting preferences will not always be subject to review.

The OAS General Secretariat urged yesterday that the separation of powers, the autonomy of the electoral authority and the integrity of the electoral process be respected, and that the competences of the different judicial instances be respected so that the granting of decisions of injunction or rejection be given in accordance with the provisions of the Constitution and the electoral legislation.

To feed a narrative of fraud without evidentiary support undermines the will of the people and the democratic institutionality. Elections must be won at the ballot box, not by disqualifying candidates or challenging legitimate results emanating from the electorate. In the democratic game, it is up to the winners to act with humility and to the losers with dignity.

Reference: E-035/23