Election Observation and Legitimacy of Venezuela’s Parliamentary Elections

Venezuela's opposition, what remains of it, is working frantically to question the legitimacy of the December 4th parliamentary elections. The ambiguous EU and OAS election observer reports give the opposition much room to interpret the vote in its favor, even though the EU admits that the vote was secure and transparent. The result could be more destabilization in Venezuela's immediate future.

By Gregory Wilpert – Venezuelanalysis.com
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Two weeks after the December 4th National Assembly election, the dust has settled and each side is claiming victory. Following an election, this is a fairly common phenomenon, as each side tries to “spin” the results with the media, to make it look like they won, no matter how implausible the claim. Except, in this particular election, the effort to claim victory is not based on who won the most seats in the National Assembly (AN), but on how legitimate the vote and the resulting AN are.

That is, because most major opposition parties decided to boycott the election a few days before it took place, abstention turned out to be quite high. As a result, the opposition quickly managed to turn public discussion about the vote into a question of just how legitimate the new National Assembly would be. Opposition spokespersons, such as the NGO Súmate and various opposition party leaders argued that since turnout was unusually low,[1] relative to previous parliamentary elections, most Venezuelans heeded the opposition’s call for abstention and thus could be considered opposition supporters. Of course, that the 45% that abstained in previous parliamentary elections were not necessarily opposition supporters does not occur to them. Also, that many Chavistas did not feel like participating in an electoral contest in which their side was guaranteed to win does not impress opposition theorists either.

Government officials and supporters parried questions of legitimacy by pointing out that practically all of those who voted ought to be counted as Chavez government supporters. According to this calculus, 25% support[2] for the government is far more support than previous parliamentary majorities had, as a percentage of registered voters, when only between 11% (in 1998) and 17% (in 2000) supported the winning party.[3] The fact that one sector of Venezuela’s political landscape is not reflected in the participation statistic or in the final result, in the AN, is irrelevant, as long as they were given ample opportunity to participate and to win.

Unfortunately, this debate over abstention did not even attempt to answer the question of what makes a parliament legitimate in the first place. The meaning of legitimacy can be considered from two angles. First, it can refer to whether the citizens consider a particular government the rightful one. In other words, the general population might, for various reasons, such as abuse of power or illegal actions, consider a government to have lost legitimacy. Second, it can refer to whether basic agreed-upon procedures for establishing a government, such as a fair and transparent election, were adhered to, regardless of what the population thinks about the government itself.

Venezuela’s opposition is essentially arguing along both tracks, that the Chavez government is illegitimate both because the vast majority of citizens do not recognize it as legitimate, due to the low voter turnout, and because it supposedly failed to follow basic procedures for being elected. The first argument, that a low turnout means that most citizens perceive the government as illegitimate is, as mentioned earlier, a very weak argument. Local elections around the world often have as few as 25% to 30% voter turnout. This does not mean that most voters consider the resulting elected officials illegitimate.

The second argument, that the government is illegitimate because generally accepted procedures for a fair and transparent vote were not followed is equally flawed. Relying only on the observations of outsiders, such as the European Union Elections Observer Mission (EU EOM) and the observers of the Organization of American States, one can say, despite their criticisms, that the elections were secure and transparent.

Elections Observers’ Report

Praise

Of the two reports, the OAS report was the more unfavorable one towards the election. The OAS report said nothing about the security or transparency of the election and criticized a number of different aspects, leaving the impression that the elections were essentially unfair and non-transparent. I will return to the precise criticisms in a moment.

The EU EOM report, though, despite similar criticisms as the OAS report, made some unequivocal statements about the security and transparency of the December 4 vote. For example, with respect to the CNE the EU report said the CNE, “technically administered the process well,” and “demonstrated a clear willingness to meet the demands of the opposition parties to increase confidence in the process.” Also, according to the EU report, “In a context of mistrust and extreme polarization, the EU EOM acknowledges the efforts made by the CNE to increase the political parties’ confidence in the process.”

With regard to the controversial voting machines, the EU EOM said, “The security and transparency measures introduced in the automated voting process are in line with the most advanced international practice.” It then goes on to list some of the security and transparency measures, which involved a variety of audits of both the machines’ hardware and software. This level of security allowed the EU report to state, “The general conclusion of the observers was that the voting machines seemed very reliable.”

Revealing about the electoral procedure and atmosphere is that while both the OAS and EU reports note the high level of opposition distrust in the voting process, the EU report states, “The political parties were selective in presenting to the media the activities and the findings of the audit sessions.” Presumably there is a connection between the non-reporting of audit results and the general distrust. That is, this observation suggests that the opposition parties consciously wanted to increase the level of suspicion and distrust towards the CNE among their supporters precisely by not reporting their auditing activities and their results.

With regard to confidence building measures, the EU reported that the CNE did practically all it could do. “The CNE, in a positive attempt to restore confidence in the electoral process took significant steps to open the automated voting system to external scrutiny and to modify various aspects that were questioned by the opposition,” said the report. Also, “The decision to eliminate the fingerprint capturing devices from the voting process was timely, effective, and constructive.” Despite this concession, the opposition decided to withdraw from the election, causing the EU to comment, “It was therefore with surprise that the EU EOM took note at this stage of the withdrawal of the main opposition political parties from the electoral contest without any new additional motivation.”

Oddly, even though purpose of the EU report presumably was to render judgment about the security and transparency of the vote, the observers left it up to a reporter’s question to say exactly how transparent the vote was. “The entire observer mission has said that we have not one instance that would allow us to affirm that there was no transparency. For us, there was transparency in the electoral process,” stated EU EOM leader José Albino Silva Pineda in response to the reporter’s question.

Criticism

The main criticisms in both reports focused on four issues: opposition distrust of the CNE, the previous disclosure and abuse of the list of people who supported the presidential recall referendum, an ambiguous legal framework, and pro-government advantage with regard to the media and other resources. Let us examine each of these in turn.

Of these four main criticisms, the one about opposition distrust appears to be the most inappropriate criticism to make, given that neither observer mission explores where this distrust comes from. That is, neither examined whether this distrust has any basis. As a matter of fact, the EU report, in various instances, strongly suggests that it is not valid. Still, by mentioning the distrust without exploring its causes or basis, the reports suggest that those who distrust the CNE have good reason to do so.

It is indeed undeniably true that opposition supporters distrust the CNE. However, the reason for this distrust, as suggested earlier, has more to do with actions of the opposition leadership to promote distrust than with anything the CNE has done. That is, not only did the opposition leadership fail to tell its supporters about the extent of its own access to CNE procedures and audit results, but it actively promoted a wide variety of myths about the CNE, most notably the claim that the August 2004 presidential recall referendum was fraudulent. Immediately after the referendum results were announced, Acción Democrática (AD) went on record to state that massive fraud had been committed. A little later nearly all major opposition parties joined the fraud chorus.

In the weeks following the referendum, the opposition launched a so-called technical committee of experts to analyze all aspects of the referendum, led by constitutional lawyer Tulio Alvarez, essentially to prove what AD had stated a few hours after the referendum ended, that massive fraud had been committed. Alvarez’s commission argued that statistical analysis and analysis of the data streams between the voting machines and the CNE center proved that fraud had been committed, so that a 60-40 victory for the opposition, had been turned into a 60-40 victory for Chavez. International observers from the OAS and the Carter Center, though dismissed all of these claims.

Still, the propaganda campaign against the CNE had its desired effect and left the CNE with practically no credibility among opposition supporters. It thus comes as no surprise that the OAS observer mission for the December parliamentary elections said, “the Mission has observed that there remains a distrust of the CNE on the part of a significant segment of the opposition.”

The EU report does delve into one possible source of distrust towards the CNE, which is the publication of the list of names of Venezuelans who signed the petition in favor of holding a recall referendum. This list, known as the “Tascon list,” after the National Assembly deputy who posted it on his website, was later used by some government officials to determine who would be hired or who would receive certain government services, such as participation in one of the new social programs, known as “missions.” According to the EU observers, the prior use of this list contributed to the high abstention rate. While the use of this list is clearly illegal and could have contributed to opposition supporters’ distrust of the electoral process, one should also know that the government jobs and services in the pre-Chavez era were far more dependent on support for the governing parties than they are now. That is, this is not a practice that the current CNE or Chavez administration invented, but which existed previously and which the Chavez government obviously failed to dismantle.

The third criticism that both reports mention is the ambiguous legal framework. According to the EU EOM, “The legal framework contains several inconsistencies that leave room for differing and contradictory interpretations.” Unfortunately, other than mentioning the so-called “Morochas” problem, the reports do not spell out exactly what they mean by the inconsistencies and how this came to be a problem. The lack of explanation here is especially problematic in that it leaves the impression that Venezuelan legal code is in some way different from that of other countries in this regard, where there presumably is little or no room for differing or contradictory interpretations. This is, of course, absurd because there are few legal frameworks that could not be interpreted in a variety of ways. It is precisely the one of the functions of a country’s court system to adjudicate differing legal interpretations. This is exactly what Venezuela’s court system does and has done with respect to its electoral law system. How the existence of differing legal interpretations is a problem for the December 5th vote is thus unclear. Ultimately, the only ones that count are, first, those of the electoral power and, second, in the case of a dispute, of the judicial power (which, in the case of Venezuela, are each independent branches of the state).

The only example the reports mention, of the “morochas” (twins), did indeed cause controversy, but was resolved by the Supreme Court. The court ruled that the morochas system of creating alliances between one party that ran candidates only on the party slate section of the ballot and one that ran candidates only on the “nominal” (direct candidate) section of the ballot were completely legal. According to the EU report, this strategy “defies the spirit of the constitution, but is technically allowed.” Presumably, it defies the spirit of the constitution because it makes party representation in the parliament less proportional than it would have been if the candidates on the list portion and on the direct portion of the ballot were of the same party.[4] The bottom line in all of this is that the opposition has an equal opportunity to make use of this loophole (which it was going to do, if it had participated), it is perfectly legal, and does not diminish the election’s transparency or security in any way.

The fourth criticism, of governing party use of state resources for campaigning, is the only serious criticism. Indeed, contrary to election law (and the CNE’s explicit admonishment), elected state officials regularly appeared on campaign posters along with National Assembly candidates without suffering any penalties. While such practice is clearly illegal, it does not mean that pro-government parties that did this had an unfair advantage during the campaign. That is, opposition parties had plenty of exclusive access to the private media, which still dominate Venezuela’s media landscape and that clearly favor the opposition. The pro-government parties countered by using one of the state TV channels (VTV), but this barely balanced out the predominance of the oppositional private media.[5]

Another criticism that both reports mention, but which did not play much of a role in the election, was that at one point during the election day, National Assembly deputy Iris Varela, said that government employees who did not go to vote should be fired from their jobs. The CNE and others immediately declared that any such demand was completely illegal.

Observer Recommendations

In the week following the release of the OAS and EU election observer reports, President Chavez attacked them in the strongest terms, saying that the U.S. embassy in Venezuela had a role in their drafting and that one of the OAS report drafts was even harsher than the final report. Chavez called the reports a “gross maneuver” for having called for a new CNE. Similarly, Venezuela’s foreign relations vice-minister for Europe, Delcy Rodriguez, suggested that Venezuela would reconsider who it invited as elections observers for future elections.

Indeed, the OAS report is decidedly strange in the way it mentions the many CNE concessions, without giving these a positive evaluation for the establishment of trust. Rather, the OAS report goes on to say, “It is up to the electoral authorities to generate the necessary conditions for the full participation of all sectors.” The only opposition demand the CNE did not concede, but could have, in order to assure the opposition’s participation, would have been the CNE’s resignation. Based on the OAS report, it would thus seem that the OAS looks favorably upon this kind of blackmail by one of the sectors engaged in an electoral contest.

With regard to the reports’ explicit recommendations, the EU sticks largely to doable and necessary procedures, such as harmonizing the old electoral law with the new constitution, the audit of the electoral voting system and of the electoral register by an independent institution, and the creation of a civic education program on the usage of the voting machines.

Two of the EU’s recommendations are less likely to be implemented. First, the EU recommends the appointment of a new CNE that is trusted by all sectors of society. While the new national assembly will probably appoint a new CNE in early 2006, it is extremely unlikely that this new CNE will enjoy the trust of the opposition. It has repeatedly been demonstrated that anyone that the pro-Chavez forces trust will, by definition, not be trusted by the opposition, and vice-versa.

The second EU report recommendation that will probably not be implemented is the public financing of political parties. Venezuela used to have a public financing system for its political parties, but Chavez had it eliminated because there was a general consensus when he took office that this financing system was abused by the two dominant parties in the past in order to perpetuate themselves in power.

The OAS report’s recommendation is much more general and sweeping, as it involves the creation of an opposition-government dialogue to restore the opposition’s confidence in the electoral system. While this is, on the surface, a good idea, it is unlikely to go anywhere. First, the opposition has become so weak that the pro-Chavez forces generally feel that they no longer need to pay attention to this intransigent opposition, which, in their eyes, created one obstacle to Venezuelan democracy after another. With their support for the coup, the oil industry strike, the denial of the recall referendum results, and, most recently, with the boycott of the parliamentary elections, this opposition has shown itself to be more interested in short-circuiting the constitution than in playing politics according to the rules.

Second, mutual distrust between the government and the opposition is so great that any effort to engage in a dialogue is doomed from the start. Numerous attempts have been made in the past and each effort failed, with the opposition subsequently taking yet another drastic and ill-conceived course of action. It is thus much more likely, given the lack of trust and the general feeling that the old opposition is practically gone anyway, that Chavez supporters will try to encourage the development of a new opposition. This new opposition would be made up of radical Chavista supporters who feel Chavez is being insufficiently radical and moderate opposition leaders (such as Claudio Fermin and Teodoro Petkoff), who are interested in playing the role of a constitutionally “loyal” opposition, rather than the subversive opposition that has existed so far.

With the opposition practically entirely gone from elected office now, it remains to be seen if they can still muster any credibility and unity to stage an electoral comeback or whether they will opt to continue their adventurist political activity outside of the electoral framework. Such non-electoral activity would bode ill for Venezuela, because it could create "contra"-style low-intensity conflict, on a much smaller scale than in Nicaragua, but destabilizing nonetheless. Unfortunately, by not presenting clear-cut evidence to question the validity of the recent National Assembly elections and by not being more explicit about their validity, the OAS and the European Union observers lend credence to the opposition’s approach and thus contribute to Venezuela’s destabilization.


[1] Súmate claims turnout was 18%. The official figures, which observers endorsed, though, state that turnout was 25%.

[2] Actually, governing party support was closer to 22.5% in this election because not all of those who voted voted for one of the governing parties. The actual percentage of voters that supported governing parties was closer to 90%. (90% of 25% is 22.5%)

[3] In the last elections for the U.S. Congress that did not coincide with a presidential election, in 2002, only about 20% of the voting age population supported the winning party (37% participation x 55% support).

[4] For a detailed explanation of this rather complex procedure, see:

[5] The Venezuelan state owns three other TV channels, besides VTV, but two of these practically did not cover the campaign at all (Vive and Telesur) and the third, the National Assembly TV station ANTV, gave equal opportunity to both pro-Chavez and opposition candidates.