By Juan Sebastián Lombo, EL ESPECTADOR, March 21, 2022
(Translated by Eunice Gibson, CSN Volunteer Translator)
Alexánder Vega’s petition caused a new political commotion, sowed doubt about the canvassing, and opened a legal debate about the powers of the CNE in this area.
Never before in the recent history of Colombia have we seen a time of political instability this great, because of the doubts about the election process. Perhaps the most immediate antecedent would be the days after April 9, 1970, when Gustavo Rojas Pinilla was leading in the presidential elections and at the end was defeated by Misael Pastrana Borrero. The victory of the conservative, a representative of the National Front, was taken as a clear sign of election fraud, which led to a fired-up political and social climate for several months. Since then there have been no similar events, until now. The shadows left by the election process of last March 13 again awaken accusations of fraud, and ideas about how little confidence the Colombian democratic system can inspire.
The accusations of alleged fraud have come from the two political sides that are most strongly felt in public opinion: Petrism and Uribism. In fact, the first to express their doubts about the results of the voting were the members of the Historic Pact Party. They were suspicious because they had been one of the parties that got the most votes for the Chamber of Representatives and the Senate in the whole country; but the preliminary results showed that there were nearly 25% of the tables where they had not received a single vote.
They immediately sounded the alarm and were talking about “widespread fraud”, because of the inconsistencies in the E-14 forms, which is where the poll workers record the preliminary results. Even organizations like the Electoral Observation Mission (MOE) expressed their qualms about the statistical anomaly. Because of those inconsistencies in the preliminary results, there was a request for a general recount.
During the municipal and departmental canvasses, the panorama started to change. Votes for Historic Pact started to appear in those four tables, and the coalition of the left increased its total of seats from 16 to 19 during the preliminary count. According to the Director of the Civil Registry, Alexánder Vega, it was all an unintended omission when the data were reported, because of some deficiencies in the design of the E-14 form; the marking for Historic Pact had been relegated to the bottom of the last page, and in very small print. With the increase in votes for Petrism, the followers expressing their disagreement with the results were the followers of Democratic Center, the representatives of the right, like ex-President Andrés Pastrana. The governing party took on the same theory as their opponents, and they also talked about fraud. And, in the same way, they also demanded a recount.
Democratic Center was also talking about the erasures and inconsistencies on the E-14 forms, and they even said that Petro’s vote totals were “suspicious”, and talked about his coalition’s votes in the areas where drug trafficking groups are present. Pastrana said, without any evidence, that the change in the results must be related to a meeting of the leader of Humane Colombia with employees of Indra, the business in charge of the software for the national canvass. Mind you, the former president didn’t consider that the results had not gone through that software program, since, up to now, only the departmental canvass has been completed.
At first, last Thursday, the Registry Director’s answer was to refuse a recount at the national level, insisting that that was already being done by the canvassers at the time they found the irregularity in the E-14 forms. However, this holiday Monday, after a statement by President Iván Duque, asking for a national recount and announcing a Tuesday meeting of the National Electoral Guarantees Commission, Vega let them twist his arm and stated that he would request the National Electoral Council (CNE) to order a new vote count as a way of furnishing legitimacy to the election of the new Senate. His statement didn’t calm any spirits, however; rather it stirred up a hornet’s nest.
At that moment, the governing party and its allies celebrated the announcement. The Democratic Center awarded itself the victory and said that Vega’s decision was thanks to their legal team. “Thank you for guaranteeing transparency and fighting so that Colombia can learn the truth about these elections,” was the comment by the collective to the lawyers who would be showing up to follow the canvassing. A majority of Álvaro Uribe’s party celebrated the position taken by the Director of the Registry and they went so far as to request that the recount be extended to the Chamber of Representatives, where there had also been a big loss for the party that brought Iván Duque to power in 2018.
On the contrary, most of the opposition challenged the announcement. Only Antonio Sanguino praised the decision, since he had filed a civil rights action calling for a recount that might erase the beating he took on March 13. Gustavo Petro led the comments opposing Vega’s new posture, insisting that Vega was planning to carry out a “real fraud”, since supposedly the chain of custody of the votes had been broken after the canvass was finished last Saturday. The majority of the comments were of that kind, even though it’s worth pointing out that the chain of custody wasn’t broken, because that has to be guaranteed, keeping in mind that the last phase of the canvass, the national canvass remained to be done. The CNE has to carry that out.
Beyond the political controversy about the decision, the announcement by Alexánder Vega caused a huge legal debate about CNE’s jurisdiction to do that. According to the decisions of the Council of State, there can only be a recount of the table-by-table results during the national canvass, which is done by the Electoral Tribunal when the political organizations have appealed the results of those bags. That situation wasn’t being carried out. Using that logic, the former justice of the CNE, Armando Novoa, commented that the petition for a general recount is unconstitutional; it even disregards the work of the canvass that was hurried up last week.
Novoa recalled the precedents relied on by the Council of State in stating that the recount “cannot be indiscriminate and done in generalized form. It is to focus only on the complaints that have been presented,” so they can’t open all of the bags of votes, only those that were disputed in previous procedures. That position is not shared by the current members of the CNE; they insisted that, in spite of the fact that they had not studied the petition, it would give free rein to a general recount as a “clean-up”. The CNE is empowered to do that if it finds that the exceptional causes established by the Council of State to exist, so that they could skip over the rights to recount that have been identified in the prior canvassing proceedings by the National Electoral Council.
Besides that debate, the petition for a general recount could open a real Pandora’s box. The Electoral Tribunal could accept the petition, and it would have to come up with a procedure, because of the fact that it is not contemplated in applicable laws. The most probable is that they would bring back the municipal canvassing commissions, faced with the volume of a national canvass.
In addition, this administrative determination could be challenged by a suit filed with the Council of State, and that could freeze the general canvass until there is a final decision. The Administrative Tribunal could conclude that the recount is irregular, and that the phases of the canvass are valid, which could allow the first results to stand, although at this time they are being questioned by the Uribists. There is also the possibility that it would determine that the recount was in accord with applicable law and let the results stand.
And there’s one more scenario, the least comfortable, in which the CNE would carry out a general canvass, the Council of State would strike that down as invalid, and the results would be declared null and void. In that situation, the entire 2022-2026 congressional elections would hang in suspense until the Administrative Tribunal could carry out the canvass. Doubtless, that panorama would destroy any legitimacy of the Legislature and would worsen the crisis of confidence in our institutions that exists right now.
 CNE: Colombia’s National Electoral Council