Caracas, Venezuela, October 29, 2005—Venezuela’s Supreme Court issued a ruling on Thursday, in which it rejected a request for a court injunction to prohibit the use of an electoral loophole in the upcoming December 4th legislative elections. The court stated that it did not see any evidence that the use of the loophole, known as “morochas,” or “twins,” violated the constitution, any existing laws, or electoral regulations. One of Venezuela’s opposition parties, Democratic Action (AD), had filed the request for an injunction, with the argument that the morochas violate the Venezuelan electoral principle of proportional representation. Pro-Chavez parties argued that the loophole was perfectly legal.
Venezuela’s electoral system for legislative elections is quite similar to the German system. In Venezuela, voters have two votes in legislative elections. One is for a national party list of candidates, where representation is proportional. The other is for individual candidates running in their voting district, where a candidate wins based on gaining a relative majority of votes in that district. 40% of the legislature’s seats go towards candidates who won on the party list half of the ballot and 60% of seats go towards candidates who won on the individual candidate half of the ballot. Candidates that win their voting district on the individual section of the ballot count towards their party’s proportional vote on the other half of the ballot.
In the 2000 legislative elections, though, the opposition governor of Yaracuy state discovered a loophole in the electoral system. According to the morochas loophole, two different parties run for office in an alliance. One of the allied parties presents its candidates only on the national party list section of the ballot. The other party runs its candidates only on the individual candidate section of the ballot. As long as both parties in the alliance have a good chance of winning a majority in most voting districts, they can nearly double their representation.
The reason for this is that a two party alliance that dominates the voting process will not only get the party list candidates elected, but candidates running as individuals who belong to the other party in the alliance are also elected. Since the candidates running as individuals did not run their party on the proportional vote section of the ballot, none of their candidates count towards a proportional vote. As a result, the party running only candidates on the list gets most of its candidates elected and the party running candidates only as individuals gets most of its candidates elected. The two parties that are in an alliance thus end up with twice as many representatives as they would have had, had they run candidates on both the party list section and on the individual of the ballot. Smaller parties, since they tend not to win candidates on the individual section of the ballot (because they are too small to win a plurality of votes in any given district), end up being underrepresented.
The pro-Chavez alliance of parties decided to make use of this electoral loophole for the first time in the August 2005 local elections, when it ran candidates on the party list section of the ballot under Chavez’s MVR party (Movement for the Fifth Republic) and no MVR candidates as individuals for the other half of the ballot. Instead, pro-Chavez forces created a new party, known as UVE (Union of Electoral Victors), which ran candidates only on the individual section of the ballot. As a result, while MVR and allied parties won 58% of the proportional vote, the together with the candidates who won on the individual candidate section of the ballot, as members of the UVE party, pro-Chavez forces won 80% of all positions up for election (list plus individual).
Opposition leaders argue that the use of the morochas loophole breaks the constitutionally guaranteed principle of proportional representation. Pro-Chavez party leaders counter, though, that the Venezuelan electoral system is primarily based on individual candidates winning a majority in their districts, not on proportional representation, as is demonstrated by the fact that only 40% of the seats are allocated according to the principle of proportional representation. The other 60% are allocated according to the principle of individual candidates winning a majority in their districts.
The Supreme Court’s main argument for allowing the morocha vote system was similar, in that it explained that article 63 of the constitution guaranteed both proportional representation and “personalization” or votes for individual candidates. Exactly how these two guarantees are to be fulfilled is left up to the legislature, the National Assembly (AN). The electoral council’s legal advisor made a similar argument before the court, saying that the plaintiffs should be making their request to the National Assembly, to change the law, not to the Supreme Court.
The court’s second argument was that the Supreme Court cannot, via a court injunction, create new rules or procedures, which it would have had to do if it forbade the use of the “twin” voting system. In other words, as long as the procedure is formally correct, there is nothing the court can do to intervene.
“The principle of personalization of suffrage is guaranteed by the nominal vote and proportional representation by the list vote, leaving it up to the initiative of citizens and the political organizations the system of election and nomination of their candidates,” read the Supreme Court’s ruling.
The court added, that opposition parties have the same right and in fact are exercising it, by developing their own “twin” candidacies. The court also said it is up to the electoral council (CNE) to decide how winning candidates should be determined. That is, the court left open the possibility that the CNE could rule that “twin” candidacies are actually the same party and that therefore should not be allowed to run as if they were different parties. The CNE has so far, however, rejected such a course of action.