to invalidate or revoke a statute or general provision that is found to be
unconstitutional. However, reference is only made in this Handbook to those
specifically electoral challenges that come under the jurisdiction of the organs
entrusted with a country’s EDRS.
93. However, some EDRSs provide that the court with jurisdiction to resolve
challenges, and in specific instances to ensure that a particular electoral
action or decision is compliant with the legal framework, is authorized to
exercise oversight over not only its legality but also its constitutionality – or
at least is authorized to put the question of unconstitutionality before the
organ with jurisdiction over constitutional justice. In Spain, for example,
the Administrative Court (Tribunal Contencioso Administrativo) can refer a
matter to the Constitutional Court (Tribunal Constitucional), which hands
down the ruling. This means that if the action or decision concerned is based
on an unconstitutional law or general provision, it is overturned as a result.
This happens in EDRSs which confer jurisdiction on the constitutional court
or council, on a supreme court which is part of the judiciary, or on some of the
specialized electoral courts – as in Ecuador and Mexico. In this way, the EJS
provides a comprehensive defence of electoral constitutionality and legality.
94. Regardless of their effects, electoral challenges that can be brought against
actions, procedures or decisions related to electoral processes can be classified
as administrative, judicial (being a court which is either part of the judiciary
or autonomous), legislative or international, depending on the legal nature of
the organ in charge of resolving the matter. This is analysed in greater depth
in chapter 7 of this Handbook.
Box 4.1. Types of electoral challenges
• Administrative
• Judicial (being a court which is either part of the judiciary or autonomous)
• Legislative
• International
3. The regime of electoral liabilities: imposing sanctions
95. The law governing electoral processes also encourages compliance with
its provisions through a regime of criminal or administrative liability for
election-related matters, constituted by the full set of sanctions applicable to
those responsible for crimes or administrative infractions related to electoral
processes. This regime is predominantly punitive, as it does not correct or
annul the effects of an electoral irregularity or wrongful conduct but merely
punishes the person responsible for the criminal offence or administrative
infraction. It therefore constitutes an indirect mechanism for ensuring that
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