As a result of a series of rulings by the Supreme Court of Justice (TSJ by its initials in Spanish), the 2020 parliamentary elections will take place under a new legal framework characterized by giving the National Electoral Council (CNE by its initials in Spanish) legislative powers that allowed the agency to modify the National Assembly’s seat distribution system (from 167 to 277) and to implement an indirect election system to elect indigenous representatives.
In addition to these critical changes to the electoral system, the TSJ intervened in two basic processes to achieve transparency and equity in elections: the process to designate electoral officers and the process to designate political parties’ guidelines. These interventions caused the 2020 parliamentary election to lack two decisive elements to determine its legitimacy: the presence of an impartial electoral arbitrator and the presence of a system of independent and autonomous political parties.
Designating electoral officers. Similar to previous elections, TSJ truncated the regular process followed by the National Assembly to designate electoral officers, which is specifically set forth by article 296 of the Constitution of the Bolivarian Republic of Venezuela. Using the mechanism known as legislative omission, the TSJ’s Constitutional Chamber not only designated the CNE officers but went beyond that and designated in the same move two of its magistrates as CNE officers: Indira Alfonso as president and Gladys Gutiérrez as main Officer (rector in Spanish).
Additionally, TSJ violated articles 36 and 37 of the Organic Law of the Electoral Power by distributing leadership positions and designating members of subordinate entities, such as members of the National Electoral Board, the Political Participation and Financing Commission, and the Civil and Electoral Registry Commission. TSJ also kept officers in positions they already had inside the electoral entity, such as Carlos Quintero and Abdón Hernández as substitute officers.
Intervening in political parties’ internal processes. In just three months, TSJ intervened nine political parties that identified with the opposition (Acción Democrática, Movimiento Primero Justicia, Voluntad Popular, Bandera Roja, Acción Ciudadana En Positivo and Movimiento Republicano), and also others that identified with the pro-government alliance Gran Polo Patriótico but had decided nominate their own candidates (Patria para Todos, Compromiso País and Tupamaro).
The TSJ rulings also allowed the newly designated officers to use the CNE card, logo, symbols, emblems, colors and any other identifying concept of the agency that was intervened.
Electoral registry. Something fundamental to exercise the right to vote in Venezuela is the ability for citizens who are old enough to vote to register themselves in the electoral registry, as well as ability to update their records for those citizens who have already registered. Without these two simple operations either it is not possible to vote or it is extremely difficult to do it.
The process to register and update voters’ data during the 2020 parliamentary elections process had two big problems that severely limited the right to vote: a) the time periods set to accomplish these two tasks were extremely short, and b) the locations to do it were scarce and, at least according to a study, were not in accordance with population density patterns.
In general voter registration events last 30 to 45 days, which allows young people to have the opportunity to overcome any obstacles that can come up and prevent doing so. Given the pandemic situation, which has been exacerbated by a radical, mandatory quarantine, it would have made sense for CNE to not only set a voter registration and data updating period substantially longer than the normal one (or alternatively extend the original time period substantially), but also to increase the number of locations for citizens to accomplish these tasks.
If you consider that 1,568 locations were in operation during the 2015 parliamentary elections, it is patently inadequate that only 551 locations were operational this time. The organization Súmate carried out a study that found, for example, that CNE did not open up registration and data updating locations in 58.1% of parishes and 4.5% of municipalities, which prevented approximately 25% of citizens old enough to vote to do so. The study also showed that the set locations were not distributed proportional to population density.
As a result of these limiting factors, the number of Venezuelans registered in the electoral registry (20,710,421) remained more or less the same as for previous elections. Based on forecasts by several pertinent experts and organizations, approximately 36% of young people old enough to exercise the right to vote were not registered in the electoral registry.
Proportionality. Regarding the changes to the legal framework, CNE assumed the legislative authority that TSJ granted it and changed the proportion of seats in the parallel system established in article 8 of the Organic Law of Electoral Processes (LOPRE by its initials in Spanish), increasing the nominal adjudication to 52% and the proportional representation for the positions on the list to 48%. Additionally, CNE created a national adjudication list to elect a 48 more representatives. This is not related to any of the two ways to vote set forth in the law and, pursuant to CNE’s special regulations, this national adjudication list is not within the voter’s direct voting system but works as sort of an indirect election system without that additional level representing a particular state.
Regarding the population percentage set as 1.1%, CNE also made a constitutional change that allows it to increase the number of representatives from 167 to 277. To achieve this, CNE worked with a population base estimated at 32,778,056, a figure that pursuant to article 11 of LOPRE must be approved by the National Assembly. CNE ignored this process altogether.
Election of indigenous representatives. The Venezuelan Constitution sets forth the right of indigenous communities to have political participation. Both the TSJ ruling and the Special Regulation to Regulate Elections of Indigenous Representatives in the National Assembly affect the progressiveness of peoples’ fundamental and civil rights by ignoring universal, direct, secret and free elections. According to what the new regulations set forth, the election of indigenous representatives, which will take place three days after the 2020 parliamentary elections, would become a de facto indirect election as it is delegated to an assembly vote. Although CNE modified its own regulations, it did not change the provisions pertaining to community assemblies.
Automated voting system. The automation of electoral processes in Venezuela, especially voting and vote counting, has been hailed by CNE to demonstrate the agency’s strength in elections in the country.
The 2020 parliamentary elections, however, will take place in a new environment where the reliability of the Venezuelan automated voting process has been questioned by most national and international parties. The reason behind this questioning of what was previously one of the main sources of pride for the Venezuelan electoral system is based on two main reasons:
1) Smartmatic, the company responsible for automating voting in Venezuela, and how abruptly it left the country after it announced publicly serious irregularities in CNE’s handling of vote counting in the 2017 Constituent National Assembly election.
2) The March 2020 fire in a CNE warehouse that resulted in the burning of a critical percentage of the voting hardware, which forced CNE to replace almost all the system’s critical components.
Given the lack of transparency and lack of official information on the process to replace voting machines and hardware, as of the date of this report CNE has not provided any answers to the following questions: 1) the total number of voting machines ready to be used for the election; 2) the number of voting machines ready to be used on election day; 3) information on the bidding process and the cost of voting machines (and their components); 4) contents of development and maintenance contracts; 5) software details; 6) location of voting machines production lines; and 7) the company responsible for the automated voting system, among others.
Software audits. Given the characteristics of automated voting systems, it is essential to carry out comprehensive audits far enough in advance to guarantee the transparency of the electoral process and to generate trust in voters. CNE violated this basic tenet of electoral transparency by setting such a short time for these audits and by not providing detailed information on the auditing process.
Based on this, the auditing of the new voting machines’ software did not decrease the lack of certainty on how the voting system works but rather increased it and added new questions.
CNE announced a new dual auditing plan of the automated voting system (characterized for being in person for political parties’ representatives and remote, via videoconference, for special guests, experts and international voting observers) on the “special rules on auditing procedures via videoconference and in person on the Venezuelan electoral system in accordance with the biosafety plan.” Yet, the way said system was put forward did not allow for a real and effective inspection of the process or object to be audited.
Electoral campaigns. The rules that govern the development of electoral campaigns specifically prohibit: a) political partiality of public officers (article 145 of the Constitution of the Bolivarian Republic of Venezuela; b) using public resources to favor political parties or projects (article 13 of the Law Against Corruption); and c) early electoral campaign activities (article 75, number 1, of LOPRE, and article 204, number 1, of LOPRE Regulations).
Both CNE and some of the main agencies of the executive power, as well as some of the main government personalities, openly and systematically violated all these precepts. With regard to the prohibition on early electoral campaign activities, some non-pro-government parties also violated these rules.
Given these violations, Juan Carlos Delpino, CNE’s substitute officer merged, urged CNE’s vice president and the president of the Political Participation Commission, Leonardo Morales, to act on the regulation he called “early campaign and use of public resources.” The monitoring made during the campaign, however, did not show the implementation of measures or concrete actions to limit said violations.
Timetable. Publishing an electoral timetable simultaneous to the call for elections is a basic act of transparency as it allows the nominees to know ahead of time activities before, during, and after the election, including the duration and dates of said activities.
Similar to what happened in previous electoral processes, CNE did not present the pertinent timetable during the calling for the 2020 parliamentary elections. Moreover, after it published the timetable it made a number of changes on the go, and in some cases, it did not timely communicate or explain them. Not presenting the timetable in the call for elections is a clear violation of LOPRE as article 42 therein expressly sets forth that the calling for elections “will include a public announcement of the electoral timetable of the election at stake, including stages, acts, and activities that must take place pursuant to the provisions of this law.” Article 110 of LOPRE’s Regulations ratify this provision.
Gender equality. Despite the constitutional provisions on equality for men and women and the administrative decisions and laws on gender equality, significant gaps in this regard were present during the 2020 parliamentary elections process. A review of the National Adjudication List published by CNE and carried out by CEPAZ determined that only three of 26 political parties met the gender equality criterion (El Cambio, Pro-ciudadanos and UPP89). No party met the ‘alternability’ criterion. Some political entities nominated candidates with gender gaps that reached up to 30%.
Covid-19. Given the pandemic created by Covid-19, CNE established a series of protocols focused on using face masks, physical distancing (one and a half meters), disinfecting hands with hand sanitizer before allowing voters to access the voting machine, a recommendation to not touch their faces (nose, eyes, and mouth), a recommendation to not touch surfaces on the voting center or voting table, prohibiting the use of accessories (except a small bag for women), and surveillance by the Voting Center Director and the Plan República to guarantee compliance with said measures. Additionally, CNE informed sanitation measures were applied when the voting tables were being installed and built, especially for voting machines.
The aforementioned protocols, however, were not followed during the majority of the activities before the election and were blatantly not enough given the international standards set forth on the topic. CNE’s narrative emphasized following the protocols set forth by the World Health Organization and the Pan American Health Organization, but ignored the comparative experience of organizations that have evaluated the effects of the pandemic on election processes. The OAS’s guide to hold elections during the pandemic, for example, has 40 recommendations for elections of which CNE had only considered 12 (30%) as of the date of this report.
The lack of observance of these bio-sanitary rules was especially evident on campaign activities, both by the government party (PSUV) and other political parties. Even Nicolás Maduro said on public television on November 7th that campaign activities of Gran Polo Patriótico and other political parties had not observed said protocols.
Information before election day. An election can be declared clean and transparent when the guarantees regarding free voting are respected but also when citizens can access at all times plural, precise and timely information on candidates, electoral offers, and the organization of the election.
The regulations that govern media coverage during election times include specific measures that favor information equilibrium. Yet, in reality media outlets and high government officials served as platforms to promote candidates, campaigns and messages in favor of the government party. This pattern did not change during the entirety of the 2020 parliamentary election process.
Conclusions
Venezuela faces a multidimensional crisis whose origin could be traced to the institutional breakdown that took place in the country several years ago. Such a crisis cannot be solved without addressing this circumstance from a structural approach. In this sense, it is important to understand that an electoral event alone is not going to solve the serious problems that Venezuela suffers. It is therefore imperative to advance towards a political agreement, in which free elections constitute an unavoidable step.
The 2020 parliamentary elections offered an important opportunity to move towards the re-institutionalization of the country, whose main axis was the normalization of the National Assembly. Although positive gestures were observed, such as the setting of agreements that allowed the return of the parliamentary fraction of the United Socialist Part of Venezuela (PSUV) to the Assembly, and the creation of the Electoral Nominations Committee to appoint the rectors of the National Electoral Council (CNE), these actions were truncated, on the one hand, by the appointment of the aforementioned authorities by the Supreme Court of Justice, and on the other, because of the unilateral advance in key matters of the electoral process by the political group in power.
Therefore, Venezuela is approaching the end of 2020, facing an electoral event that accentuated, in an alarming way, the deterioration of the conditions and guarantees of its citizens, and the right to choose, weakening at the same time the national democratic space. Faced with a profound erosion of the living conditions of Venezuelans, within the framework of a complex humanitarian emergency that does not distinguish between political colors, it is imperative to bring back the notion of respect for life and human dignity to the center of political action. It is therefore urgent to advance towards the restoration of the electoral route, where the right to choose, citizen participation and voting trust are restored as a basic instrument of democratic change.
Achieving these goals, however, presents a number of significant challenges. In the first instance, it is necessary to lay the foundations, among actors with political decision-making capacity, of the conviction that any sustainable solution to the serious crisis that Venezuela is suffering necessarily requires a political, peaceful and electoral solution. This implies, among other things, an agreement to hold free, fair and credible elections.
Secondly, it is important to emphasize that although the responsibility to achieve this agreement falls on the shoulders of Venezuelans, it is impossible to advance significantly towards that direction without the involvement of the international community. The coordinated support of different international bodies is essential for the promotion of the trust, transparency and participation that any electoral process requires.
Finally, it is equally critical to understand that the damage inflicted on citizen participation mechanisms, and on the electoral system as a whole, has been profound and lasting. The reconstruction of the electoral route will therefore require not only time but also a sustained commitment by the main political actors.
The efforts made by the organizations gathered for the preparation of this report seek to document the irregularities and incidents of the 2020 parliamentary electoral process, as well as to understand the depth of the of undermining process faced by the Venezuelan electoral system.
Check the report here
