ELECTION DISPUTES GALORE -- AND HOW THEY COULD

UNCLAS MANAGUA 002094 SIPDIS SENSITIVE SIPDIS DEPT FOR WHA/CEN E.O. 12958: N/A TAGS: PGOV KDEM SOCI NU SUBJECT: ELECTION DISPUTES GALORE -- AND HOW THEY COULD AFFECT NICARAGUA,S ELECTION RESULTS ¶1. (SBU) SUMMARY: The possible threats that impugnaciones (election disputes) pose to a legitimate election in November were recently discussed and explained at a forum hosted by IPADE and NDI. Candidates from all parties, with the exception of the FSLN, were in attendance and participated in debate with the hope of clarifying confusion over electoral law and reaching a constructive agreement. The Supreme Electoral Council (CSE) failed to attend, despite their confirmation and prominent place on the agenda. Possible election fraud scenarios have been laid out in public and the FSLN faces accusations that they are conspiring with the PLC and the CSE to defraud the 5 November vote. CSE President Roberto Rivas announced on September 20 that the CSE will modify the regulations concerning vote result challenges (impugnaciones); however, the modifications in the regulation present other risks. The bottom line is that we can expect the CSE to attempt to allow political interests to prevail over fairness on election day. Party poll watchers and observers can help stem these efforts. END SUMMARY ¶2. (U) Institute for Development and Democracy (IPADE) recently held a day-long forum on election disputes (impugnaciones) where international experts, political party representatives, and NGO members discussed the laws and concerns about impugnaciones in the upcoming election. Pat Merloe of the NDI presented the democratic theory and international precedent of election observation and dispute, using as examples, the cases of Granada 2004, the 2006 Mexican election, and Florida's 2000 election to illustrate possible problems and tried solutions. Political party representatives were given the opportunity to debate with one another and discuss concerns and possible solutions. Not in attendance was the Supreme Electoral Council (CSE),even though it was scheduled to fill a large part of the agenda, and the Sandinista Liberation Front (FSLN). Heated debate among candidates and forum participants ensued, but as the workshop ended, no viable solutions were in evidence. For example, Sandinista Renewal Movement (MRS) member, Dora Maria Tellez, accused the FSLN of being in league with both the PLC and the CSE to mount a massive fraud based on using impugnaciones to annul votes in departments where the FSLN and PLC are losing. ON OPENING THE BALLOT BOX FOR THE RECOUNT - - - - - - - - - - - - - - - - - - - ¶3. (U) Many voices, including that of international elections authority, Luis Alberto Cordero, emphasized the importance of clarifying procedure concerning when election party poll watchers (fiscales) are permitted or encouraged to open the ballot boxes and conduct a recount. The concern is that strict electoral law prohibiting the opening of ballot boxes, except in extreme situations, can accord more power to the tally sheets (actas) and make the election more easily defrauded. Current electoral law is self contradicting, stating both that a fiscal who refuses to sign an acta faces between 30 and 180 days in prison, and that an unsigned acta or impugnacion makes the votes of that voting center null and void. IPADE is encouraging a clarification of this law so that confusion, perhaps deliberate, does not allow the widespread nullification of Voting Centers (JRV). ¶4. (SBU) All interlocutors agreed that the electoral law should be flexible enough to give due power to the ballot itself and not allow "the next government of this country to be decide by a piece of carbon paper." According to director of Etica y Transparencia , Roberto Courtney, many details of the procedure are excluded from electoral law and leave the procedure open to much interpretation, making it possible for officials to proceed legally without lending legitimacy to the process. According to Cordero, during the 2001 election in Granada, election officials were completely within the law, but the election was absolutely illegitimate, setting a dangerous precedent for future behavior. ¶5. (U) Specific concerns about impugnaciones raised at the forum: -- The specific procedures for raising and addressing a dispute are unclear. -- Whether an alteration on a copy of an acta is basis for a dispute. -- Whether an unaltered copy prevails over an altered original. -- Whether when opening a ballot box a recount is warranted, or what rules prevent one. -- Impugnaciones will be brought by fiscales who arrive at the poll at the end of the day. -- Impugnaciones will be used to delay the vote and incite panic. -- Impugnaciones will be used to discredit the process and cause confusion. -- Although five parties have the right to deploy fiscales, the acta form only includes one line for observations. ¶6. (U) At the heart of this debate are concerns over the control of certain political parties over the process. As delegates related during question and answer periods, the fact that Nicaragua's electoral process is held hostage by the FSLN-PLC pact, makes any minor detail imposed by the CSE a potential attempt to manipulate the process. As the party representatives debated, Julio Rojas, legal representative for the Alternative for Change (AC) lamented that, as a small and new party, it was impossible to gain access to the mechanisms that the traditional parties use for control and that he wanted reassurances that his party's fiscales would have access to the polls. As he finished speaking, a PLC representative stood to question him and, in the style of a TV court, held up a series of pictures showing the AC campaign headquarters in Leon, painted with FSLN campaign slogans and stating that the FSLN is a friend of the AC. (Note: If not falsified, this picture will be the first proof that the AC is behaving as a front party for the FSLN, a rumor we have heard circulate.) THE IMPORTANCE OF SHOWING UP - - - - - - - - - - - - - - ¶7. (SBU) The two most important characters in the debate over impugnaciones, the CSE and the FSLN, failed to attend the forum at all. A presentation by the CSE and a debate with the political parties constituted about a quarter of the forum and the CSE was scheduled to arrive and simply didn't. This absence raised concerns over the transparency and accountability of the organization, which were whispered and mentioned in private conversations. NDI speaker Pat Merloe reported to pol intern that in an earlier meeting, CSE president Roberto Rivas had expressed to him that he didn't want to send a representative to the forum "in order to avoid problems." In the same meeting he made clear his belief that the ballot boxes should not be opened "on principle" and that he would advise his representatives to avoid that measure. Speaker Luis Cordero faulted the CSE for its lack of accountability to the people, putting forth statistics that while 70% of the people trusted the CSE in 1990, less than 42% trust the organization today, a factor Cordero believes contributes to abstentionism. ¶8. (U) The FSLN, on the other hand, gave no indication as to whether they intended to come. Their absence was noticeable during the comments of many participants, guests, and party representatives, who referred to the FSLN as "the party that shall not be named." The FSLN's lack of participation in this forum, the presidential debate, and other public election events has drawn concern. POSSIBLE SCENARIOS FOR USE OF IMPUGNACIONES AS A TOOL OF ELECTION FRAUD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ¶9. (U) Various scenarios for how impugnaciones could be used to perform voter fraud were discussed. During the forum, PLC representative, Miguel Rosado, passionately painted a picture of the FSLN using the delay caused by widespread impugnaciones to "fill a certain plaza with people and declare victory" preventing or complicating a recount. This event would cause disorder which the FSLN could use to leverage power. ¶10. (SBU) In a public statement, Dora Maria Tellez of the MRS accused the FSLN of working with the PLC and the corrupt CSE to mount massive election fraud using widespread impugnaciones. According to the scenario she envisions, the FSLN and the PLC will take advantage of the confusion over proper dispute procedure to annul JRV's in areas where the two parties are losing, or polling at a low level. Tellez accused the FSLN of securing two positions on JRVs throughout the country by registering Sandinista loyalists into the JRV posing as AC members -- if true, such registrations would give the FSLN two of the three spots on a JRV. (COMMENT: We have heard and reported before that AC candidate Eden Pastora may be Ortega's "Trojan pony," that many of his JRV officials are FSLN members and will side with the FSLN in the event of any dispute on election day.) THE THEORY AND HISTORY BEHIND THE DEBATE - - - - - - - - - - - - - - - - - - - - - ¶11. (U) NDI representative Pat Merloe spoke through a translator as he explained cases that have established international precedence and laid out the normative requirements for bringing an election dispute to the attention of authorities. He explained that a legitimate system of dispute resolution must ensure that all citizens enjoy equality before the law, equal protection before the law, an impartial tribunal for the redress of grievances, and effective remedies to disputes that honor the will of the people. This lecture provided participants with a starting point and their reaction showed that on many observations, Merloe was explaining something truly new to many audience members. He emphasized that impugnaciones should always protect and "respect the will of the voters as expressed at the ballot box." Speaker Luis Alberto Cordero agreed Nicaragua's strict election dispute laws make it feasible for the laws to be used to go against the will of the voter. COMMENT - - - - - ¶12. (SBU) Likely in an effort to defuse some of the criticism, CSE President Roberto Rivas announced on September 20 that the CSE will eliminate the stipulation that if one of the three members of a voting table (JRV) does not sign the vote tally sheet (acta),then the votes are voided -- replacing this with a new condition that the votes are valid so long as two of the three JRV members sign. Although at first glance the CSE's change of heart appears encouraging, the modifications in the regulation present other risks. With the change, JRV officials representing the PLC and the FSLN, or the FSLN and the AC, could "collude" and sign an acta that is inaccurate, and the third JRV official could do little. The CSE will also add language that notes (as per Article 173 of the Electoral Law) that if members of the JRV do not sign the opening, closing, and observation acts deliberately or in bad faith, then these officials are subject to the penalties described in Article 173 (referring to electoral infractions). The bottom line is that we can expect the CSE to attempt to allow political interests to prevail over fairness on election day. Party poll watchers and observers can help stem these efforts. TRIVELLI