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