Citizen request for an evaluation of the errors in the 2019 electoral process in Guatemala that cause citizen discontent with Democracy and with the TSE.

For many Guatemalans, the last electoral process in 2019 was one of the worst electoral processes in the country's democratic era. We have identified different challenges that arose throughout the process and that must be reviewed to obtain a clear diagnosis of the cause of these problems in the Guatemalan electoral system. This is with the aim of continuing to strengthen one of the pillars of our democratic republic: the electoral system through the Electoral and Political Parties Law (LEPP). However, before proposing reform proposals, it is necessary to review and address the issues or doubts about the last electoral process.

Humanizing politics

The Guatemalan electoral system has a serious problem, and that is the disconnection that exists between citizens and representatives. It is alarming that 7 out of 10 citizens in Guatemala believe that Democracy has serious problems.

The rules of the electoral system, which have a great impact on citizens, must be designed for citizens, around citizen participation, with the appropriate mechanisms for public power control.

For this reason, more than 1,500 citizens submitted a request for a formal review of the errors that occurred during the 2019 electoral process in Guatemala.

Article 256 Ter of the LEPP states that:

“Social, academic, and political organizations may submit their proposals to the Commission.

The Supreme Electoral Tribunal, if appropriate, will present the corresponding bill to the Congress of the Republic, which must consider them before the end of the first ordinary period of the new legislature.“

Therefore, the CAME must carry out a serious evaluation and identify the problems of the last electoral process. This is demanded by the more than 1,500 citizens who signed the petition for a review of the electoral process.

Recount of Prejudicial Events for Democratic Perception during the 2019 Electoral Process

• Errors in the computer system for presenting electoral results.

In June 2019, Gustavo Castillo, head of the TSE's IT Department, stated that there were errors in the vote counting system. The problems were related to the digitization of records and data duplication, and for these reasons, they had decided to freeze the databases. As a consequence, we saw public concern regarding the proper handling of their votes.

To this day, there is no answer as to why the vote counting software was changed or what caused this error.

• Censorship of media outlets.

Threatening freedom of expression and limiting the ability to debate or articulate proposals, the TSE magistrates' plenary approved a regulation in March 2019 that prevented media outlets from holding forums, debates, and interviews with candidates on topics not included in a predefined list. This agreement was highly criticized for its evident censorship, as it clearly prevented media outlets from holding forums and debates. The aim was for the Specialized Unit on Media and Opinion Studies to authorize the activities proposed by the media and the topics to be discussed to publicize candidates' opinions and proposals.

On March 11, the MCN filed a constitutional appeal for protection due to the threat of violating freedom of expression against the TSE magistrates. Although the issued regulation was revoked a few days later, the threat of censorship to freedom of expression was still latent.

• Judicialization of candidacies by the Constitutional Court, Supreme Court of Justice, and the TSE.

A clear example of this was the case of Zury Ríos. In 2015, the Supreme Court of Justice approved Zury Ríos' candidacy when the Citizen Registry had rejected it, and in the end, the Constitutional Court provisionally granted her protection. In the past elections of 2019, the story changed, and the candidate was not protected by the CC nor registered with the TSE. This demonstrated a back-and-forth between these institutions, as they had different arguments for accepting or rejecting Zury Ríos' registration as a candidate. On one hand, there was the constitutional restriction of article 186, but also the argument that the right to elect and be elected is a human right.

• Registration of turncoat deputies as re-election candidates.

The LEPP clearly states, in Article 205 Ter, the prohibition of registering turncoats. However, several turncoat deputies were registered. In accordance with the current provision, the MCN filed an appeal against the registration of deputies considered turncoats. By registering turncoat deputies, the principles of legal certainty, equality before the law, and legality of an electoral law reform carried out in 2016 were violated.

• Contractors registered and awarded positions

On the one hand, the Electoral Law states that state contractors cannot be registered as deputies, while the Constitution of the Republic states that they cannot assume legislative positions. Despite these two prohibitions, the TSE registered 32 candidates who were state contractors and four of them are now deputies.

• Threat from magistrates against those who alleged electoral fraud.

Despite the fact that there is no crime or offense in expressing one's thoughts, the TSE considered reporting those who expressed that there had been electoral fraud. This implied another threat against freedom of expression, as the TSE and its magistrates were unable to receive criticism, even when it was as radical as alleging fraud. However, Article 35 of the Constitution of the Republic states that "publications containing denunciations, criticisms or imputations against public officials or employees for acts carried out in the exercise of their duties do not constitute a crime or offense."

• Lack of review of campaign finance reports.

Given the regulation obliging political parties to declare all contributions received from their supporters, they tried to stretch the imposed budget ceiling by reporting expenses below their real cost. Parties tried to report the lowest possible expense figure in their reports. However, the TSE only received these reports and should have conducted thorough audits to determine if the information reported by the parties was truthful. This was in addition to the non-use of the "clear accounts" mechanism by all political parties.

• Poor regulation of electoral advertising in media by the TSE.

Both media outlets and political parties expressed their dissatisfaction with the electoral advertising regulations. Due to the cumbersome and contradictory processes of the LEPP, many national media outlets with wide coverage did not register with the TSE. By trying to equalize the conditions of political parties regarding advertising, the real result was to disadvantage voters. As a consequence, there was a lack of citizen awareness of the electoral offerings.

• Inaccessibility of resolutions issued by the TSE.

In March 2019, the MCN requested the Citizen Registry to make public the criteria used to reject in some cases and accept in others the registration of certain candidates for deputies. This was with the aim of having clear elections and clear rules, given that a uniform and coherent criterion for the application of Article 205 Ter of the LEPP on political defection was not made public. The MCN requested to know the reasoning of the authorities for allowing the participation of turncoat candidates on two occasions, however, the TSE was unable to publicly provide information on the matter. This demonstrated the authorities' lack of willingness to exercise their powers in the best interest of the citizenry.

• Contradiction among TSE Magistrates regarding the interpretation of the validation of null votes.

Two positions were expressed regarding the null vote. On the one hand, magistrate María Eugenia Mijangos said that null votes would only be valid if they reached 50%+1. However, on the other hand, magistrate Julio Solórzano interpreted that null votes would be counted as valid votes even if they did not reach 51%. Given this, two days before the elections, the TSE had not issued a clear position on how to use the null vote.

• The absence of the Registrar of Citizens Leopoldo Guerra who retired before the end of the electoral process.

One of the key officials in the TSE was absent during the most critical stages of the electoral process. Leopoldo Guerra, director of the Citizens' Registry, left the country, and Omar Gereda Franco temporarily had to assume Guerra's duties. Furthermore, before his retirement, he was criticized for carrying out "express" registrations by not taking into account errors in registration applications or others that did not progress.

Evaluation for proper reform

Let's remember that the Electoral and Political Parties Law is one of the most important in our republican system, as it guarantees the mechanisms to elect two of the three branches of government and maintain the crucial separation of powers. However, the existing problems demonstrate that changes must be made to continue building a healthy democracy. These changes are impossible without first identifying the problems, shortcomings, and their causes. Therefore, the evaluation of the 2019 electoral process is necessary before moving on to the much-needed reforms to the LEPP. This review must be critical, in-depth, and not exhausted solely through knowledge of general figures from the electoral process; while these figures are important, they are not sufficient for a real diagnosis of the practice of the electoral system applying the current electoral rules.

The National Civic Movement demands that the CAME authorities conduct a diagnosis together with the organizations participating in it, using as a starting point the presentation made during its first session, in order to comprehensively address the nature of the CAME to correctly evaluate what happened in the 2019 electoral process. This is with the aim of understanding which electoral legislation is not adapted to the Guatemalan reality and to the citizen expectation of a republican democratic model that our Constitution of the Republic points to.

This CAME process will conclude and the recommendations will be submitted to the Congress of the Republic, which has the important responsibility of improving the electoral system through a reform of the Electoral Law.