353. One essential characteristic of an EDR system is that it offers an integral
defence of electoral rights and a guarantee that every action and decision
related to the electoral process complies with the legal framework.
354. Access to justice should be guaranteed not only for the person, political
party or other claimant bringing the challenge, but also for anyone who
upholds a contrary interest – such as an interested third party – so that the
latter is afforded a guaranteed hearing. In this way, the system will comply
with the principles of due process related to the right to a defence, by virtue
of which all parties have the right to engage in the process with an equal
opportunity to plead and argue as befits their interests.
355. In addition, it is fundamental that there is a judicial mechanism to defend
the constitutionality, and not just the legality, of electoral actions and decisions
related to an electoral process, which the persons and entities affected – political
parties, voters, candidates – can turn to in order to argue that specific provisions
of the law are unconstitutional. This should also enable the EDR system to
provide an integral defence of the principles of the constitutionality as well as
the legality of electoral actions and decisions. Given the short time frames for
resolving electoral challenges under pressure from the timetable of the electoral
process, it is advisable for the EDRB to have the jurisdiction to review not only
the legality but also the constitutionality of electoral actions and decisions.
356. To facilitate access to the EDR system, the procedure for bringing electoral
challenges should be simple. Filing a complaint brief with the appropriate
authority (the EMB), for example, should be sufficient to commence the
procedure, open a case and, subsequently, have it forwarded to the appropriate
decision-making authority (the EDRB) without the person or entity bringing
the challenge having to travel from their place of residence in order to file it
directly with the EDRB. This can guarantee the geographical accessibility of
electoral justice without requiring a wide network of decentralized presences
of the EDRB to be established. For example, in France, all challenges relating
to national elections are dealt with by the Constitutional Council in Paris,
but may be submitted through the Prefect of the département.
357. It is also important to minimize the formalities required for a challenge
to be deemed to have been properly filed. Some EDR systems provide for
different kinds of electoral challenge, depending for example on the nature of
the action challenged, the organ before which it is brought, the person who
brings it or their claim. This can lead to the exclusion of challenges that may
be valid in substance on technical or procedural grounds, which does not
promote the credibility of the EDR system. It is good practice for EDRBs to
consider a challenge properly filed if it identifies the action challenged and the
reason why it is considered unsatisfactory, even if a mistake has been made
regarding the use or name of the means of challenge, jurisdiction or forum.
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