AAs the United States prepares for one of the most contentious national elections in its history, Judge MarÃa del Carmen AlanÃs Figueroa of Mexico watches with interest.
In his country, all election-related proceedings were brought before the Federal Electoral Court. Designed during the reforms of the late 1980s and early 1990s, the tribunal hears only election-related complaints and is the final say on such prosecutions. This ensures that these cases can be adjudicated quickly and isolates the rest of the judiciary from politics, according to AlanÃs, who served as a court judge for a decade and was his first female president.
MarÃa del Carmen AlanÃs Figueroa is a former electoral judge and member of the Kofi Annan Foundation Electoral Integrity Group.
Today, Judge AlanÃs is part of the electoral integrity group of the Kofi Annan Foundation, a Geneva-based non-profit organization that promotes fair governance around the world. His work for the foundation included writing a policy document on electoral integrity and access to justice.
“Access to justice in elections is not just a complaint about electoral management or ballots or polling day,” she told Law360. “Political rights are human rights. This includes the rights of minorities, the rights of women, the rights of immigrants.”
Here, she discusses the role of the courts in elections, particularly in the United States in November.
What is the role of lawyers and the courts in preserving political rights?
Well, this is fundamental. In Latin America, there are electoral tribunals – at the same level as the Supreme Court – created only to protect electoral rights, political rights. In the formal law program of Latin American universities, there is a subject of electoral law. We have lawyers specializing in elections. But they don’t just complain about the ballots, the results or the polling stations. It is a permanent activity for the protection of human rights. We are talking about constitutional law. Access to justice is therefore essential for electoral integrity.
Are there concrete standards or practices to promote access to justice during elections?
Due process is the primary standard. It is no different from other branches of law.
I think that the possibility of immediate and timely access to redress of rights is most important here. These cases should be resolved quickly in order to adjust the next stage of the elections. Otherwise, it could be challenged in different stages, and if the courts do not resolve it immediately, it could affect the end result, the legality and the whole exercise. Access to justice is important to protect human and political rights, but also the integrity of the election.
In the newspaper [for the foundation], I mention key principles to improve access to justice and four elements: Recognize that political rights are legal rights. Guarantee due process and the right to a fair and public hearing. Is it possible? It depends. You have the technology, but it has to be very open, public. Auditable. [Another principle is] clearly explain the reasoning behind the judgment. It is argumentation. It’s legal. It’s the judge. And finally, to grant access to effective remedy and redress. It is the possibility of going further [appellate] to research.
In your policy document, you talk about the best conditions to guarantee fair elections. They include less obvious factors, such as economic stability. In the United States, we are in an economic downturn and there are upheavals over racial justice issues, and on top of that, the pandemic. Do you think this historic moment could affect the elections?
Certainly. Let me give you an example: women. We fought for the recognition of the rights of women as equal to men in order to participate in equal conditions. We fight very strongly against violence against women in politics, pushing them to participate.
Now we have the pandemic. We have taken a lot of perspective. Women are again in stereotypical care activities, at home taking care of children, the elderly. Levels of violence have increased dramatically. Women lose their jobs because [employers] prefer men. I was following specific cases of violations of women’s rights in Latin American countries, and it was terrible because the courts were closed.
Now how can we ask them to participate in these conditions? We are working very hard to create special conditions for women to put them on an equal footing to participate.
For elections and for politics, any national phenomenon that affects elections affects the integrity of elections. The state and the authorities must create the conditions for participating on an equal footing. You must create the formal possibilities to go to the authorities in case of violation of your political rights. If you can’t get to the polling stations, millions of people vote by post, electronic voting, etc. You must take this into account and take special measures to offer the best conditions. Otherwise it won’t work.
As the US election approaches, there has been a lot of concern about access to polling stations when people are uncomfortable voting in person. Do you have any concerns about literal voter access, and is it a legal issue?
Access to the polling station is one of the most important things. The first concern of the electoral authorities is health. We must protect voters and also election officials. You also need more money. And schools are one of the main places where you set up polling stations, all over the world. The schools are closed, so we have to find new places.
In these sanitary conditions, it is very difficult. With postal voting or electronic voting, what authorities need to create is accountability and auditing of these procedures. Electoral organizations must be much more open to scrutiny. You probably took it for granted that it worked. Now you probably need to create more controls to monitor.
For example, election observation. How do you bring in international observers? Now that is not possible. People from 40 different countries need to come to different stages of the electoral process. Now we are doing it through virtual media. You give them information about what’s going on in the country. You probably have more interviews on Zoom. You would probably bring a sample of famous and recognized observers for election day, and send them to different places with special sanitary measures.
We must therefore adapt everything, but we must not forget to take measures to protect the legitimacy of the election. At all stages of the process, it must be possible to lodge a complaint or challenge these activities before an administrative authority or a court which could resolve them immediately so as not to affect the final result.
President Donald Trump has said the US election will be decided by the Supreme Court. There is some controversy that Republicans are rushing to confirm Amy Coney Barrett, their candidate to replace Judge Ruth Bader Ginsburg. You write that “justice … plays a central role in managing political unrest” and establishing the legitimacy of government through law. Does this situation threaten this legitimacy?
I am convinced that it is better to go through legal dispute resolution than to try to resolve it in political terms, or through political negotiations. What you are fighting for is power, so it cannot be solved by political means. It’s not bad if it goes to court. For me, it’s much better than taking to the streets, with demonstrations and civil wars.
I can give you an example: the elections in Kenya [in 2007], in Mexico in 2006. In these two countries, we had very close elections. In Mexico, there was less than a point of difference between the two candidates. There were street protests, but in the end they accepted the court ruling. In Kenya, they did not have a strong tribunal to solve this problem, and they went to war. So it’s good to have a strong legal system.
In these extreme circumstances, I see no other solution than the courts. For Bush v. Gore, we never knew what really happened. I don’t know if Gore won or not. We have the feeling that the Supreme Court decided to protect the institutions, but all the discussions analyzing the cases and the arguments, we did not know what was going on there. It was very dark. In the end, there was a decision accepted by both parties and the electorate.
I don’t know if something similar is happening now, this process of deliberations, I don’t know if it will be accepted now. If the system respects all the norms and all the principles, it is for me the only solution for the peaceful transition through the rule of law and justice, and both parties must accept the decision. This is what we must continue to work on.
But it is of paramount importance how you select or appoint judges. If you choose political judges, it won’t work. It is also a political strategy to attack institutions in order to rig them. We have to protect the institution.
All Access is a series of discussions with leaders in the field of access to justice. Questions and answers have been edited for length and clarity.