well as deliberate violations of the law. In 1946 they validated persons who were
ineligible for the National Assembly (Assemblée Nationale) and the system led to
unjustifiable validations in the overseas elections of 1946 and 1951 and to the majority
parties recovering seats in the National Assembly in 1951 and 1956. Debates on issue
of verification became notorious and were one of the factors which contributed to the
loss of credibility of the National Assembly of the Fourth Republic.
157. To curb possible abuses by the legislative bodies and political assemblies,
several EDR systems aimed to combine the means for prior electoral challenges,
put in the hands of judicial bodies, with still entrusting the final decision as
to the validity and results of an election to the legislative bodies. This was
an effort to reconcile the rule of law with entrusting the final decision on an
election to an organ whose members were selected democratically, although
it should be noted that its democratic nature would be called into question in
some challenges. In practice it is now exceptional for a legislative or political
organ to fail to recognize, or to overturn or modify, a judicial decision, given
the political cost that this would entail. Those EDR systems that still provide
for this possibility are characterized by the traditional restraint of legislative
organs in this regard.
158. There is now practically no system of government remaining in which
an EDR system is entrusted exclusively to a legislative organ or political
assembly. Those countries which still have such a system for legislative
elections – and, for those that hold them, presidential elections – do so in a
way that coexists with either: (a) prior judicial review, at least with respect to
electoral actions and decisions other than electoral results (as in Argentina and
Belgium), or including decisions on electoral results, as in the United States,
Italy, Latvia and Lithuania but not Denmark, the Netherlands, Norway and
Switzerland; or (b) subsequent judicial review of decisions by parliament
on legislative electoral results (as in Germany through the Constitutional
Court, Verfassungsgerichtshof). These are therefore mixed legislative-judicial,
legislative-administrative or judicial-legislative EDR systems.
159. A mixed legislative-judicial EDR system exists in the United States.
Challenges to federal elections regulated and organized by the authorities
of each state generally combine a hearing of the challenges before a regular
state court, which is usually part of the judicial branch (after the Supreme
Court has reviewed the state court’s ruling and by writ of certiorari by the
Supreme Court) with provision for subsequent challenge before a legislative
organ – the House of Representatives or the Senate – which hands down the
final ruling. In addition, the US Congress has the constitutional authority to
count the votes for presidential elections. A concurrent vote of the majority
65
5. A general classification of EDR systems
(cont.)