Post-election disputes and Venezuelan law

• David Smilde is the moderator of WOLA's blog: Venezuelan Politics and Human Rights. The views expressed are the author's own.

On April 14, Venezuela’s voters shocked the world by electing Nicolás Maduro to the presidency with a narrow margin-just weeks after he enjoyed a fifteen point lead in the polls. This is not the first time that Venezuelans have upended expectations. On August 15, 2004, they reaffirmed support for then-president Hugo Chávez in a recall referendum that most people were confident Chávez would lose. On December 2, 2007, they turned back Chávez’s attempt to change the constitution, less than a year after they reelected him with an overwhelming majority. 

Universal and anonymous suffrage gives citizens a unique ability to change the course of history, a course normally determined by people in power. Venezuelans have done it time and again, a fact that Venezuela’s leaders would do well to remember as they navigate the current political crisis.

Henrique Capriles deserves applause for having called off the opposition march to the offices of the CNE (National Electoral Council) that was to have taken place [yesterday] in Caracas. In the face of Mr. Maduro’s refusal to permit the march and the likelihood of violence occurring between opposition and government supporters, Mr. Capriles made the right decision. He also deserves applause for beginning to discuss in more details the evidence for the electoral irregularities being alleged by the opposition.

But given the severity of the allegations that the opposition has made, much more is needed from Capriles. Venezuela has a detailed electoral law and accompanying regulations that describe procedures for contesting election results. The law itself is not ambiguous and has been used before. And the opposition coalition has any number of legal experts and electoral technicians who fully understand the system and what they need to do. If they actually have a case to make, they should have no problem putting it together and presenting it accordingly. 

Specifically, the opposition needs to assemble a dossier of denunciations with clear numeric estimates of how many votes each denunciation supposedly accounts for. Saying, for example, that 535 voting machines were damaged and they accounted for 190,000 votes is not enough. They need to show that past tendencies in that electoral center suggest these damaged machines would have narrowed the gap in favor of Capriles. That would be easy enough given that detailed information on past elections is publicly available.

As well, they need to explain how these denunciations relate to their demand for a 100 percent recount. The types of denunciations they have mentioned so far have led, in the past, to re-votes in given electoral centers where irregularities were shown to have occurred. But given that the paper ballots form the April 14 election are simply receipts of the electronic vote, such a recount would only make sense if the oppositions is contending that there were errors or irregularities in the electronic transmissions to the CNE, or in the tabulation of votes in the CNE. Yet the opposition has not mentioned any such error or irregularity.

To submit their allegations for consideration, the opposition coalition needs to file this information with the CNE. If they don’t, it is going to look like they are recklessly immersing the country into a political crisis before having their facts straight. They should also make this evidence public so that independent journalists and experts can follow up on it. 

It should be noted that filing a complaint against an electoral result has nothing to do with the “winning” candidate being proclaimed, sworn in, or recognized by the opposition. The law says the aggrieved party has twenty days to submit their complaint, the CNE has five days to decide whether to admit it, and then measures can be taken to address the complaint. If the irregularities alleged by the opposition were to affect enough votes to change votes outcome, then Maduro could be removed from the presidency. This has never happened in Venezuela at the presidential level, but it has occurred several times at lower-levels of government.

Sunday’s election result has left the opposition in its strongest position in years – a position they have gained by working through democratic institutions in a context in which it is evident to everyone that those institutions are not fully fair. And they are positioned vis-à-vis a weakened government that will face difficult problems in the coming years. Just continuing to play by the rules will put them in a strong position for upcoming electoral events: the possibility of recalls of legislators in the coming months, municipal elections in October, legislative elections in 2015, and a potential presidential recall referendum in 2016. But they are in very clear danger of overplaying their hand as they have done so many times in the past.   

President Maduro and the governing coalition also need to take a pause and choose their words and actions carefully. The Maduro government transmitted three cadenas [on Tuesday]. The second of them forced a delay in a previously announced Capriles press conference. The third cut broadcast coverage of that press conference short. Maduro’s language was incredibly divisive and dismissive of the half of the population that did not vote for him. His decision to not allow Capriles march to go downtown made no reference to law or institutions. His suggestion that he is not going to recognize Capriles and will not provide a budget to Miranda State also has no basis in law. All of these actions are a very poor start to his term in office. They sounded desperate and autocratic.

Even more worrying were the declarations of others in the government. Fiscal General Luisa Ortega said that those detained in protests on Sunday and Monday could be prosecuted for “instigation of hate” and “civil rebellion” and that if they had acted in coordination they would be prosecuted using the law against organized crime. Head of the National Assembly Diosdado Cabello said he would call for an investigation of Capriles within the National Assembly regarding Sunday and Monday’s violence. He also tweeted “Capriles, you fascist, I will take personal responsibility for making sure that you pay for all the damage that you are doing to the Fatherland and the People.” 

The Maduro government has all the institutions on its side and is not vulnerable. It can afford to behave with a little more confidence and stick close to the law. The close electoral result is a clear wake up call. Their focus now should be on “a new legitimacy,” as Maduro himself said. They need to focus on building their coalition by winning back some of the supporters they lost during the campaign. In 2003, Hugo Chávez’s support was only in the mid-thirties, but he managed to win back support through concrete governing actions that citizens liked, and ultimately prevailed in the 2004 recall referendum.

In contrast, engaging in a witch hunt and taking arbitrary decisions will undermine the government’s legitimacy among supporters. And tiring the public with continual, self-serving cadenas will only further reduce the government’s electoral viability.

–  David Smilde is the moderator of WOLA's blog: Venezuelan Politics and Human Rights.