The PSOE announced this Thursday that it will go to the Supreme Court to try to force the review of the 30,302 votes that were declared invalid in the last general elections in Madrid. The Socialists hope to force this maneuver to recover the seat they lost due to the foreign vote on July 28, when the recount resulted in one more deputy for the PP by a difference of 1,341 ballots..
The Central Electoral Board (JEC), made up of eight Supreme Court magistrates chosen by lottery and five professors proposed by the parties, already rejected the PSOE request on Monday: “It does not allege any irregularity in the general scrutiny to justify the repetition that requests, but limits itself to invoking its right to review the null vote, indicating the closeness in the number of votes necessary to modify the distribution of seats”. The JEC concluded that meeting their request would “radically disfigure” the Electoral Law, but the Socialists cling to a series of precedents in Badajoz, Terrassa, Alcorcón and Lugo to try to reverse this decision.
The main argument of the PSOE revolves around a sentence of the Constitutional Court of 2015. After the regional elections that were held that year, Izquierda Unida was left out of the Assembly of Extremadura for 914 ballots and managed to force a review of the 7,064 votes that had been declared invalid in Badajoz: “If the law orders to keep those votes (… .), this has to be, by force, to allow at some later time the revision and examination of those votes”, concluded the magistrates. The JEC considers that this sentence has fine print and in no case is it comparable to the current request of the Socialists. “Therefore, a generic right to review all invalid votes without the need to allege a cause or indication of irregularity is not recognised, but this new verification must be linked to a specific reason that justifies the alleged invalidity of the vote” , explains the JEC. “This decision was adopted based on the unique characteristics of the matter under examination”.
The cases of Terrassa, Alcorcón and Lugo
The PSOE also clings to different resolutions of the electoral boards. Among them, one of the JEC of June 2011 stands out, when it corrected the previous decision of the Zone Electoral Board and partly responded to the appeal filed by different parties against the proclamation of the result of the municipal elections in Terrassa and Sant Cugat del Vallès : “This Board considers that the decision of the Terrassa Zone Electoral Board not to allow the political formations competing in the elections to review the votes declared invalid is contrary to the Electoral Law”.
In the resolution notified this week, the JEC explains that it limited itself to addressing “the requests for validation of null votes that had been raised in the framework of the appeal before it”. It was not, therefore, a “repetition of the general scrutiny”, as the PSOE is now requesting by demanding the review of all the votes that were declared invalid at the 7,118 polling stations in Madrid, but rather a review of a dozen specific ballots.
The JEC rejected the application of these precedents last Tuesday by 10 votes in favor and three against: those of the two members proposed by the PSOE, Juan Montabes and Miriam Cueto Pérez, and that of the member proposed by Unidas Podemos, Esther del field garcia. “It must be made clear that despite the difficulties and delays that the review could entail, the guarantee of the essential content of the right to passive suffrage (…) has had to prevail in the decision of the appeal”, they defend in their individual vote. To support this idea, the members point to a third precedent that occurred in the Madrid municipality of Alcorcón in the past municipal.
“The opening of all invalid votes was agreed at the request of the Popular Party, which was 41 votes away from obtaining one more councilor (…), without any allegation of exceptional circumstances beyond the meager difference,” they argue.. “As in that case, in which we are concerned, what is involved is the recognition of the right in conditions of equality (the number of votes to be reviewed 1,051 in Alcorcón, 30,302 in this case, having no legal relevance)”. The members emphasize that the same thing happened in Lugo, so rejecting the PSOE request would imply “limiting in the future the real possibilities of reviewing null votes not protested at the polling stations.”
In the absence of the PSOE strengthening its appeal before the Supreme Court with the cases of Alcorcón and Lugo, legal sources consider that it has little chance of success. All the magistrates that are part of the JEC flatly rejected their arguments and, although the court itself will now have the last word, its opinion is clear: the request “lacks constitutional and legal anchoring (…), it would prevent compliance with established legal deadlines and could even affect the constitution of the Chambers”.