b) EDR systems entrusted to a judicial body
165. In response to certain abuses committed by legislative bodies or political
assemblies in charge of an EDRS, or simply because the adoption of a different
system would better guarantee that electoral disputes are resolved based on
the provisions of the constitution and the law, various countries have opted to
establish an EDRS that entrusts the authority to make the final decision on a
challenge to a particular election to a judicial body. Since its adoption in the
UK in the late 19th century, this type of EDRS has proliferated and, whether
entrusted to a regular court as part of the judiciary, a constitutional court, an
administrative court or an electoral court, it is now the most widespread in
democracies worldwide.
166. Advocates of a judicial EDR system argue that the action of judging
and certifying elections is essentially judicial in nature. Consequently, the
exercise of these powers should be vested in a judicial body in order to seek to
ensure that elections are free, fair, genuine and valid. This avoids a situation
in which, as happens in some EDR systems located exclusively in a legislative
body or a political assembly, members judge and certify their own election. In
particular, there is a risk that the predetermined legislative majority could act
in accordance with its political and party interests, ignoring considerations of
law and justice. Vesting the power to resolve electoral disputes and challenges
in judicial organs emphasizes that this power should be exercised in keeping
with the principles of constitutionality and/or legality – the rule of law – and
not on the basis of discretional considerations of political expediency.
167. This has meant a change in the attitudes and strategies of political parties,
election officials and third parties interested in a particular electoral challenge.
Institutional means have been accorded priority for resolving electoral
disputes. The facts, lines of argument and evidence that may be put before a
competent judicial body have been brought into line with the technical-legal
requirements to ensure that they are admissible and well-founded. It is
increasingly accepted that mere political mobilization and political
delegitimization do not provide sufficient means or grounds for resolving
electoral litigation objectively, impartially and lawfully. A much more
consistent and scientifically founded body of electoral case law has emerged
that makes the resolution of electoral disputes more predictable, which is
beneficial for legal certainty.
168. Even after recognizing the advisability of conferring the resolution of
disputes on a judicial organ, it can be argued that a war of attrition may ensue
if the judicial branch becomes involved in political disputes. Some EDRSs
have opted to confer the function on non-regular courts, such as constitutional
courts, autonomous administrative courts or specialized electoral courts.
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