The Constitutional unanimously rejects the recount of null votes requested by the PSOE

The Constitutional Court has unanimously rejected the recount of null votes in Madrid claimed by the PSOE, according to sources of the body of guarantees. With this request, the Socialists aspired to recover a seat that they see as key to the tight vote of the investiture of Pedro Sánchez. The reason for the rejection is that the court considers that there is no generic right to request this type of recount without giving specific reasons and only to verify whether the operation was carried out without any error at the time, especially when there is no well-founded suspicion that the final result may be different. In this sense, the Constitutional stresses that "immediacy" in the knowledge of the vote count "constitutes a good legal to protect." The resolution has been adopted by the Second Chamber, whose composition is four progressive and two conservative judges.

The rapporteur, Judge Laura Díez, has ruled in favor of dismissing the appeal of the Socialists, as well as the Prosecutor's Office of the Constitutional Court. In both cases, they maintained the thesis that there must be concrete reasons for demanding the recount of the annulled votes, since otherwise it would be very likely that the claims and repetitions to review the electoral results would follow one another without the political forces having previously and substantiated the existence of specific irregularities.

The Constitutional Court has now clarified its doctrine on claims of electoral recounts establishing in its judgment that "whoever urges the review of the null votes contained (...) is obliged to base its request on the denunciation of irregularities during the electoral process." The court adds that "while it is not reasonable to require in these cases full proof of the alleged irregularities (...) " at least indications should be invoked."

Therefore, the Constitutional Court makes it very clear for possible claims in the future that the "review or control of the acts of the electoral procedure" is "conditioned" on the person requesting them "complying with this minimum allegation burden." The ruling emphasizes that "the isolated fact that the scrutiny shows a tight difference between the two candidacies in contention for the last seat in a constituency cannot be considered, without further consideration, as a valid reason to urge the review of the null votes, if no indications of irregularity are alleged that call into question the neat observance of the prior guarantees inherent in the electoral process. "

The Socialists had asked for the examination of the 30,302 null votes registered in the province of Madrid because the difference between the result of the PSOE and that of the PP, in the dispute for the last seat, was very small, of 1,323 votes. The Supreme Court had already rejected that claim, saying that small margin was not "sufficient basis for review." With this resolution, the body of guarantees expands its scarce doctrine on this type of conflict, in the sense of requiring that requests for new recounts must have a solid basis for the belief that errors have occurred, and not respond only to the interest derived from the low number of votes received by one or another candidacy.

The Constitutional has deliberated this Tuesday on the merits of the matter. The decision on the appeal of the PSOE corresponds to the Second Chamber of the Constitutional, composed of two conservative magistrates – César Tolosa and Enrique Arnaldo – and four progressives – Ramón Sáez, María Luisa Balaguer, Laura Díez and the president, Inmaculada Montalbán.

The arguments of the guarantee body

The Constitutional Court considers that there is no "unconditional right" to demand the revision of the count of null votes in an election and that for this it is essential to invoke "at least the indication of the existence of some irregularity in the electoral procedure." This is expressed by the body of guarantees to explain the reasons why it has unanimously rejected the appeal presented by the PSOE to recount the annulled votes in the elections of 23-J in Madrid, a request based on the possibility of recovering a seat in this constituency, where no specific reasons were previously put forward to question the correctness of the count.

The claim of the PSOE initially opened a debate in the Constitutional. The rapporteur, Judge Díez, had on her table two contradictory reports, coming from the lawyers of the court. One of them advocated the admissibility of the appeal on the grounds that the case had "special constitutional significance" and "transcends the specific case by raising a legal issue of relevant and general social or economic repercussion". The other, on the other hand, considered that the appeal should be dismissed outright because the court had made it clear in a 2015 judgment that in order to obtain a new recount there must be specific reasons.

The first debate on the admission to processing – after the Supreme Prosecutor's Office endorsed the claim of the PSOE to "clear any hint of reasonable doubt about the true and exact will of the electoral body" – was settled by four votes to two in favor of studying the challenge. The progressive sector of the body of guarantees considered that it was necessary to clarify more the doctrine of the previous sentence, and this has meant that the resolution nuances the importance of the requirement that there be some specific reason to demand the repetition of an electoral recount. In this sense, the new ruling concludes that "whoever urges the review of invalid votes is obliged to base his request on the denunciation of irregularities during the electoral process."

"Indications"

The court adds that "while it is not reasonable to require in these cases full proof of the alleged irregularity (...) yes, at least indications of these should be invoked." Therefore, the use of the mechanisms of review or control of the acts of the electoral procedure is "conditioned to the fact that the legitimated subject that intends to urge them complies with this minimum allegation burden", which did not happen with respect to the scrutiny carried out in Madrid, where more than 30,000 votes were declared null. In this case, the attribution of the last seat in the Madrid constituency depended on 1,700 votes, a difference between those of the PP and those of the PSOE. Had he fallen on the side of the Socialists, for the possible investiture of the current acting president, Pedro Sánchez, the vote of Junts would not have been indispensable, and the abstention of this parliamentary group would have sufficed.

The judgment emphasizes on this issue that "the isolated fact that the scrutiny shows a tight difference between the two candidacies in contention for the last seat in a constituency cannot be considered, without further consideration, as a valid reason to urge the review of the null votes, if there are no indications of irregularity that call into question the neat observance of the prior guarantees inherent in the electoral process. " The court has thus wanted to heal itself in health, given the risk of widespread claims in the future without well-founded suspicions of errors or irregularities.

The request for protection of the PSOE stated that the right of passive suffrage has been violated by the decisions not to access the vote count, taken by the Provincial Electoral Board of Madrid, ratified by the Central Electoral Board and later by the Contentious Chamber of the Supreme. The challenge considered that the PSOE was required "a requirement not expressly contemplated in the law, specifically, the requirement to invoke irregularities in the electoral procedure."

The unanimity of the Second Chamber in the sentence – after an admission to processing that faced progressives and conservatives – has been possible because the case has served to clarify the doctrine of the court – as the first of these sectors intended – and not to endorse the claim of the PSOE, to which the second of these blocks was opposed. In fact, the magistrates of the conservative group Enrique Arnaldo and César Tolosa voted against the admission, and the first already prepared a dissenting vote against the first decision in which he stated that "it is indisputable that the Organic Law of the General Electoral Regime (LOREG) does not recognize a supposed general and unconditional right to the review of null votes not protested in the act of general scrutiny, as the one intended by the recurrent political formation in amparo".

The importance of the sentence issued now lies in the fact that it clarifies that in order to claim a review of null votes, at least a "minimum allegation burden" must be provided and that the alleged "irregularity in the electoral process does not necessarily have to be proven by means of full proof, but it will be sufficient to provide evidence about its existence".

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