b) Annulment of the election
544. In order to safeguard the legality of electoral actions and procedures,
electoral legal frameworks establish various grounds for the annulment of
an election. It should be noted that in electoral matters, as in any other field
of public law, not every violation of an electoral legal provision has the same
effect. In order to determine the degree of impact it is necessary to look at the
legal consequences of the irregular actions or wrongful conduct.
545. Several electoral legal frameworks explicitly provide that annulment
may only be decreed on grounds expressly set out in law, although some EDR
systems grant the EDRB some discretion within the legal framework to declare
the annulment of an election, for example, so long as the ‘facts, defects, or
irregularities … influence the general results of the election’ (Uruguay).
546. In general, as an EDR principle, an annulment may only be declared
when the irregularity affects the outcome of the election or causes clear bias.
In addition, the filing of a challenge does not suspend the effects (even if
they are provisional) of the decision or action challenged. Once the period
provided for has lapsed without any challenge being filed, the corresponding
action or decision becomes final. Also, in the event of doubt (as in Ecuador) or
if the two electoral judges differ (as in the UK), the elections are judged valid.
The reason for these provisions lies in the general principle in law which states
that public actions validly carried out should be conserved. This is reflected
in the aphorism ‘the useful should not be vitiated by the useless’, which has
special relevance in electoral law, as several EDRBs have noted in their case
law (for example Costa Rica, Mexico and Spain).
547. Often, the nullification of an election can only be declared by a judicial
EDRB. On occasion, however, it results from an administrative challenge
before an EMB (as in Azerbaijan, Croatia, Estonia, Hungary, Kyrgyzstan,
Lithuania and Turkey) or a legislative challenge before a legislative EDRB (as
in the Netherlands). The rule in judicial EDR systems is that EDRB decisions
should be restricted to the issues raised and alleged, and must not address
nullities other than those raised in a challenge or complaint. Moreover, based
on the provisions of the legislation, annulment cannot be invoked by the
person who has caused it, in keeping with another general principle of law
that establishes that ‘no one can allege the acts of his/her wrongful intent or
clumsiness to his/her own benefit’.
548. Depending on the electoral legal framework, three grounds for the
annulment of an election can be identified: (a) as a result of the annulment of
the vote at various polling stations; (b) due to the ineligibility of a candidate
or slate of candidates; and (c) when the election was not accompanied by the
necessary guarantees.
178
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