Will the presidential elections in Venezuela be free and fair?
Source: El Pais
Introduction
The impending presidential elections in Venezuela, set for July 28, are raising many concerns due to the ongoing political crisis, continued fraud, and human rights violations.
A crucial question arises: will the international community consider this election free and fair?
In short, any outcome in which the National Electoral Council declares Nicolás Maduro as the president-elect will not be deemed free and fair. This conclusion is based on four general premises rooted in Electoral Law and Human Rights Law principles:
- Since 2021, the Unitary Platform and the international community have been negotiating to prevent a non-competitive presidential election, resulting in the Barbados agreements. However, Maduro is violating several of the electoral conditions outlined in that agreement, leading Venezuela toward a non-competitive process.
- Venezuela has a unique opportunity to progress toward democratic transition if, despite the fraud, the people can freely elect González. This scenario is the only one that could lead to a legitimate election and a transition based on justice and reconciliation.
- Maduro cannot rightfully benefit from continued electoral fraud employed to ensure his reelection. Furthermore, fraud has been committed as part of systematic human rights violations and is subject to the International Criminal Court investigation. Therefore, any reelection resulting from this fraud would be illegitimate, leading to a contentious election.
- Maduro’s contentious reelection could incite mass protests and political instability, exacerbating Venezuela’s crisis and its humanitarian migration crisis. From an international law perspective, the fraudulent reelection would prevent the necessary recognition and support to implement the significant policy reforms needed in Venezuela.
Despite the potential for further fraud, such as postponing the election, Maduro´s capacity for additional deceit seems to be reaching its limits. The current conditions suggest that Maduro has already made too many concessions, particularly in allowing Machado to rally the country. These concessions are not a mere change of preference but a sign that the regime could face significant domestic and international barriers to ensure a fraudulent reelection.
We cannot analyze the 2024 presidential election based on previous polls. This is the first time the opposition has been genuinely united, based on a grassroots movement rather than a pact imposed by elites.
Hence, Venezuela has a unique opportunity to advance in a political change on July 28. While this outcome may have defied the odds, we must also acknowledge that the Unitary Platform has exceeded expectations. Indeed, as Professor Brewer-Carías has concluded, this presidential election appears more like a constituent moment than an ordinary procedure to select the next president.
Free and fair elections
A seminal work by Elkit and Svensson summarized the conditions under which an election can be considered free and fair. While the criteria of freedom are linked to the effective exercise of political rights, the requirements of fairness point to the integrity of the electoral process. The authors distinguished various factors before, during, and after the election to measure those criteria. Similarly, Bishop and Hoeffler prepared a database to identify the requirements that, in practice, are most relevant to qualify an election as free and fair.
Based on this methodology, Pippa Norris studied the conditions of electoral integrity that derive from human rights through eleven elements organized in the electoral cycle. These elements provide a technical tool to determine to what extent the people’s will can be legitimately expressed, as provided for in the Universal Declaration of Human Rights.
The study of these conditions rarely culminates in a ruling limited to determining whether or not the election was “free and fair.” Instead, through mechanisms of electoral cooperation, including electoral observation, a diagnosis of the conditions of electoral integrity is usually made to determine the degree of freedom and fairness.
However, there are cases in which the seriousness of the fraud committed is such that the international community does not know the result of the elections. For example, Russia’s 2018 presidential election was considered fraudulent. The best comparison point is Maduro’s election in 2018, which was globally repudiated.
The systematic violations of the electoral integrity conditions that have already been committed
Regardless of what happens between now and election day, the systematic violations of the electoral integrity conditions implemented by the Maduro government are severe enough to prevent his reelection from being considered free and fair.
If we review the conditions of the electoral cycle, we can see how electoral legislation – including the calendar – changes at the whim of the government, as do electoral procedures. Voter registration has resulted in the massive violation of the right to vote, especially regarding the diaspora. The system of registration of candidates and parties is equally fraudulent because of the judicialization of political parties, the disqualifications, and the political apartheid against the Unitary Platform. There is no freedom of the press due to the constant censorship imposed by criminal means. Political freedoms are also curtailed in the face of the arbitrary arrests of activists of the Unitary Platform. The government prevented electoral observation, frustrating the progress made since the Memorandum of Understanding signed in Mexico and the 2021 regional elections. The electoral body is biased in favor of the government, as with the Supreme Court of Justice. Finally, as is tradition, the government has used public resources to campaign for elections.
The index of free and fair elections summarizes all this and places Venezuela at the same level as Congo.
These violations are irreversible because the electoral process has been corrupted by the fraud that has already taken place. Therefore, we can talk about the ongoing electoral fraud orchestrated by Maduro to avoid complying with the Barbados agreement.
In addition, like any human rights violation, these violations cannot be validated. It does not cease to surprise that Maduro’s government, once again, has resorted to the worn-out trick of faking an agreement with the “opposition” to comply with the electoral results. Those who signed that agreement affirmed that the National Electoral Council “has been complying with electoral guarantees.” The strength of the evidence to the contrary allows us to understand that such an agreement is, in fact, part of the fraud. It also demonstrates another fraud variant, such as the authoritarian regime’s political co-optation of political actors.
The violations described are severe enough to be considered fraudulent under Article 215.2 of the Organic Law on Electoral Processes. However, fraud is only relevant in electoral law if it successfully twists the electorate’s free will. Hence, it’s important to consider the two scenarios from July 28th.
The scenarios of July 28
There are two main scenarios for election day: the CNE proclaims Maduro’s re-election or proclaims Edmundo González as president-elect.
In competitive elections, the proclamation of the winning candidate always responds to uncertain criteria. However, there are cases in which the uncertainty is lower. For example, in the recent presidential elections in the Dominican Republic, the polls gave President Abinader the winner, as indeed happened. The polls favored Sheinbaum in Mexico, and there were also no surprises.
In Venezuela, the polls show Edmundo González as the winner. If we go to the same Wikipedia, we will see a statement similar to the one that the site referred to about the Dominican Republic and Mexico: “Most polls favor González Urrutia winning the elections by a wide margin.”
I am not a political scientist, much less do I intend to be a political analyst. As a jurist, I take this fact as one more piece of evidence. And I take it knowing the biases that polls can have, which can even affectthe electoral climate. However, the results of opinion polls cannot be understood without considering the authoritarian context in which they are conducted.
In the case of the Venezuelan election, although González seems to be leading in the polls, there is a lot of uncertainty due to ongoing fraudulent activities, which makes the election non-competitive.
Luis Vicente León, with much more experience in political analysis, has recognized that two variables can affect the result: electoral engineering and institutional control. But from my area of expertise—Constitutional Law—I think this analysis is confusing.
The word “electoral engineering” is ambiguous but refers to electoral reforms. The meaning of institutional control is more precise, which relates to the checks and balances in Constitutional Law.
Of course, Luis Vicente does not use those words in that sense. He means that electoral fraud is the only variable explaining a Maduro victory. Perhaps that is Maduro’s bet: that the continued and reinforced electoral fraud on election day will be enough to force his proclamation as president-elect, despite what the voters expressed.
It’s important to distinguish between claiming that Maduro won through electoral engineering and asserting that his re-election resulted from ongoing electoral fraud, which has been facilitated through systematic human rights violations. Referring to electoral engineering might create uncertainty, as the manipulation was more technical.
Under the current conditions, the continued fraud is of such intensity that it will make it very difficult for the world democracies – such as the United States and the European Union – to recognize Maduro’s triumph. Even Brazil and Colombia have called for free elections in Venezuela, which would hardly lead them to endorse Maduro’s fraudulent re-election publicly.
In this analysis, I am not considering the frauds that may be committed between now and election day and even on election day itself, such as announcing fictitious results, as resulted in the Essequibo referendum. The greater the fraud, the greater the repudiation and condemnation of Maduro’s reelection.
The consequences of Maduro’s fraudulent reelection are not only international. Academic research has indicated that fraudulent or disputed elections can severely affect the political climate as long as they promote mass protests.
However, if, despite the fraud, Venezuelans who overcame the obstacles can express themselves on election day and González is proclaimed president-elect, the elections will be recognized as free and fair. For example, that is what happened with the 2023 Guatemalan elections.
Only the latter, between a disputed election (Maduro’s re-election) and a legitimate election (González’s election), creates the necessary institutional conditions for undertaking the fundamental reforms necessary for Venezuela’s recovery from human rights centrality.
In any case, Maduro still has room to implement further frauds, ranging from postponing the election to banning the Unitary Platform´s political party and candidate. Any of that fraud will lead to an even more illegitimate election.
Nemo ex suo delicto meliorem suam conditionem facere potes
By summarizing my previous reasoning, we can form this conclusion: the elections will not be recognized as free or fair if Maduro is proclaimed the winner, but they will be free and fair if González is proclaimed the winner.
I have summarized my conclusion to stimulate debate: Is it not opportunistic to allege fraud only if Maduro wins?
The conclusion is based on the Latin aphorism with which I begin this section: no one can improve his condition by his crime.
Maduro’s continuous electoral fraud, implemented in the context of severe and systematic human rights violations, aims to twist the electoral will to proclaim himself the winner. Maduro could not benefit from that result since no one can improve his position with fraud. And as I said, the greater the fraud, the greater the repudiation and rejection.
Continued electoral fraud is the framework that must be considered in any analysis of the elections in Venezuela. I return to the example of the polls. Let’s assume there is a bias and that the election result reflects a more significant vote favoring Maduro. It is not scientifically possible to verify whether this difference responds to a statistical error in the polls, Maduro’s sudden popular support, or electoral fraud.
Now, let’s consider a situation where the result shows a tiny advantage in favor of Maduro. Whether or not the polls were biased is legally irrelevant. What is important is that this narrow margin was influenced by continued fraud, which, per electoral law, would make the election null and void.
In the end, and returning to Pippa Norris‘s line of research, measuring the conditions of electoral integrity responds, above all, to perception. Maduro’s continuous fraud is of such magnitude that electoral perception has deteriorated: whatever the electoral result, it will be fraudulently manipulated in favor of Maduro.
Can catastrophe be avoided? International participation and support
Based on the scenarios explained, I will elaborate on three conditions under which fraudulent reelection of Maduro could be achieved:
- In an election with high abstention, such as the 2018 election, the CNE declared Maduro the winner. A low turnout will probably allow Maduro to resort to moderate fraud on election day, resulting in a closed margin. However, this announcement will be marred by continued fraud and will not lead to widespread international acknowledgment of support. In addition, the closer the margin announced by the Electoral Council is, the higher the risk of a contentious outcome will be.
- In a scenario of high participation, Maduro imposes his result relying on massive fraud, creating conditions for a significant crisis that removes him from power and calls for freer and fairer elections. You don’t have to go far to look for an example of this scenario: the fraudulent Pérez Jiménez referendum of 1957 paved the way for a transition in Venezuela in 1958.
- Despite the challenges posed by widespread fraud on election day, Maduro might manage to navigate through domestic and international pressures. Nevertheless, without legitimate international recognition, the essential policy reforms that the country needs will be out of reach, resulting in a further deterioration of the political and economic crises and an increased risk of a new wave of migrants and refugees.
Why is the turnout so meaningful? I have closely followed the legal aspects of the 2013 and 2018 presidential elections. In both, there were elements of fraud. But participation reduced its cost. In 2013, the difference was so slight that with fraud based on voter substitutions and other minor malpractices, Maduro was elected, while his Supreme Court prevented the review of the election. In 2018, the opposition’s boycott left Maduro at ease in a scenario of high abstention, which generated international rejection but, in the immediate term, did not severely affect the regime’s governance.
Another important fact is that the current conditions are not what Maduro had expected in 2023. He had the opportunity to prevent any unified candidate supported by Machado from running and to force divisions by imposing – even indirectly – the Unitary Platform’s candidate. However, Maduro is now facing the rise of Machado’s strong leadership, endorsing Gonzales. A reasonable interpretation is that these unfavorable conditions are not only the result of the grassroots movement reinforced by primaries but also due to Maduro’s limited capacity to take further fraudulent steps.
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Hence, a question arises: under what conditions would Maduro be forced to tolerate González’s proclamation? The question demonstrates the relevant role of the international community.
The Government of Colombia has taken a leading position by proposing a political agreement, which was recently reiterated. Colombia’s request is very forceful: free elections in Venezuela and recognition of the rights of those who participate in the election. These new pronouncements by Colombia have come just when the High Commissioner denounced severe human rights violations that, amid the electoral process, have reduced civic space, which is more evidence of continued fraud.
Colombia’s interest is to avoid a fraudulent election, among other reasons, since fraud will increase the risks of conflicts, and these can aggravate the migration crisis, increasing the massive flow of people fleeing to Colombia. A necessary condition to address the root cause of the migration crisis is, precisely, the political stability of Venezuela. Such stability involves achieving an election that is not considered illegitimate. And this is a much more likely scenario if, as most polls anticipate, González is proclaimed president.
Maduro wants to protect himself and his inner circle from the potential consequences of leaving power. Since the costs of stepping down are considerable, it is crucial to focus on reaching a political agreement that involves transitioning to a democratic system, which may include elements of transitional justice. I believe Colombia’s proposal aims to achieve this goal by minimizing the costs associated with Maduro leaving office and improving the prospects for political stability in Venezuela.
Some conclusions
To provide a clear guide for identifying the scenarios that constitute free and fair presidential elections, I’ve summarized the following key points:
- The election will not be deemed free and fair if Maduro is declared president. A reelection under high voter turnout could lead to political instability and potential international sanctions because massive and gross fraud will only make the reelection possible. Even with low voter turnout, the immediate governance will be affected. In any case, under no circumstances would Maduro’s reelection be widely perceived as free and fair, creating obstacles to implementing policies to address the complex crisis in Venezuela.
- If Gonzales is declared president, the outcome will likely receive significant support and be perceived as a free and fair election, providing favorable conditions for implementing the policies needed to overcome the complex crisis. That outcome will have similar conditions to a constituent moment, creating the necessary political basis to advance in the reconstruction of state capabilities, the restoration of the rule of law, and the economic and social recovery.
Maduro’s potential for further fraudulent actions, such as election delays or banning the Unitary Platform’s political party and candidate, could significantly undermine the legitimacy of the upcoming election.
The only rational explanation for Maduro tolerating the current adverse conditions, particularly with Machado and González rallying the country, is that he cannot advance further in the fraud. Instead, he could take the risks of a low turnout or, otherwise, agree to the conditions under which he will leave power. I´m aware that this outcome defied the odds, but at the same time, we need to acknowledge that the Unitary Platform has gone further than we could have expected.