BALLOT FRAUD IN THE CATALAN ELECTIONS: COULD IT HAPPEN? Matthew Parish Catalonia has regional elections on 21 December 2017: in barely a week s time. The circumstances of those elections are that after a contested referendum on Catalan independence on 1 October 2017, Madrid imposed an early regional ballot upon Catalonia. This was an attempt to resolve a political crisis. To achieve that goal through deployment of the democratic will, it is essential that those elections be free and fair. One of the principal axioms in any democratic election is that the people who manage the procedures of voting and counting ballots are independent. They must undertake their duties with impartiality. If there are any doubts about this, public confidence in democracy may be undermined. The usual way this issue is resolved is to have public servants of undisputed neutrality who organise the election process. To ensure that the people who manage the voting process are independent, there must be rule of law. Elections should take place in the context of a legal system in which decisions of the people who arrange those elections are subject to impartial legal review whenever colourable irregularities are alleged. Spain has low rule of law. Some of the significant evidence for this is as follows. Spain s biggest ever corruption scandals are called Gürtel and Bárcenas. They involve allegations involving criminal expropriation of large sums of money in favour of the Partido Popular, Spain s governing party in Madrid; and its Prime Minister, Mariano Rajoy. The investigating Judge, Baltasar Garzón, was suspended not just once but twice on absurd pretexts. Now he is off the case and it has stalled. One of the accusations against Garzón was that he had investigated Franco-era war crimes against Partido Popular politicians with too much vigour. European institutions have expressed concerns about the independence of the Spanish judiciary and its overly intimate associations with the Partido Popular. The Partido Popular is a successor of a political party associated with one or more Ministers of Franco s fascist regime in Spain between 1939 and 1975. A national paramilitary police unit, the Guardia Civil, was engaged by the Spanish central government (controlled by the Partido Popular) to stop the 1 October 2017 Catalan independence referendum. This took place even though, although legally controversial, the conduct of that election did not amount to any crime. If it was unlawful to hold the referendum (and that remains an issue of legal controversy), then this was purely a civil wrong and not a criminal matter. Spain s Criminal Code does not criminalise the holding of referenda or ballots. Therefore no branch of the Police was properly involved in trying to stop it. The Guardia Civil were deployed to Catalonia without legal authority. They confiscated ballot boxes. They attacked people trying to vote, reportedly including firing baton rounds at unarmed voters. They used violence to close polling stations. Whatever the legality of the referendum, the Guardia Civil had no plausible legal authority to do these things.
Subsequently the Spanish courts imprisoned Catalan politicians and activists involved in the independence movement. They did this without those people being accused of any crime. Some Catalan politicians were released only upon payment of bail amounts wholly disproportionate to their incomes or assets. No obvious grounds for detention of peaceful politicians were made out. These politicians were not fugitives; they attended Court voluntarily. Four remain in prison, even though some of their names will appear on ballot papers in the forthcoming elections on 21 December 2017. Some Catalan politicians fled to Brussels, fearing imminent unjustified detention. The Spanish government issued European Arrest Warrants against them, but then withdrew them. They did this when they realised that extradition procedures before the Belgian courts were bound to fail. The Madrid judiciary had opened investigations against peaceful politicians for medieval crimes, such as sedition and rebellion. No modern democracy respects crimes like this in the absence of established violent intent which was missing. By obscure constitutional dictate, Madrid dismissed the entire Catalan regional government and its parliament, and imposed rule by decree. The abolished institutions had been democratically elected. Nothing like this has been seen in a modern democracy since the 1975 Australian Constitutional Crisis. That led to the resignation in disgrace of the Australian Governor- General, after he had dismissed the democratically elected Australian Prime Minister. The government in Madrid has banned public bodies in Catalonia from displaying the colour yellow. That is because yellow is alleged to be associated with nationalism. Madrid has made orders to remove cultural objects from a Catalan museum. Madrid has announced that there will be no election observers for the 21 December 2017 elections, because the law forbids them. But there is no Spanish legal rule that says this. The law is flexible on the point. The 2015 Spanish elections to the Cortes Generales were overseen by OSCE. Spain routinely sends election observers to other parts of the world. Why did Madrid withdraw the European Arrest Warrants against Carles Puigdemont, the deposed President of Catalonia s regional government, and his colleagues exiled to Brussels? Normally international extradition proceedings can be long and complex, because it is a defence to extradition that the crime of which one is accused is political. That condition would be satisfied for Puigdemont and his colleagues. The European Arrest Warrant system, applicable throughout the European Union, is intended to expedite extradition proceedings. It abolishes the rule on political exceptions to extradition. It also abolishes the so-called double criminality rule. Under this rule, extradition requires that the activities of a person must be a crime under both the law of the state requesting extradition and the law of the state receiving the request. The European Arrest Warrant system removes this rule between EU member states for several broad categories of crimes. The Spanish government had a risk in pursuing extradition proceedings. The Belgian courts might have ruled that not only were the activities of Mr Puigdemont and his colleagues not crimes under Belgian law; they are not crimes under Spanish law either. That is because the crimes of sedition and rebellion are vaguely defined under Spanish law. European law requires that the definitions of criminal offences be interpreted in light of the European Convention on Human Rights. To interpret historical Spanish legislation in a way that criminalises the holding of a peaceful referendum, might be regarded as infringing the European Convention. Therefore a Belgian court might rule that Spanish law and European human rights law render the criminal
prosecution of peaceful Catalan politicians bogus. Spain would have been left looking ridiculous. Spain withdrew the European Arrest Warrants. One instance of lack of Spain s rule of law is Madrid s decree that the 21 December 2017 Catalan regional elections will not involve the participation of election observers. The credibility of elections depends upon an independent election commission, accountable to a neutral legal procedure. That will not be available for the 21 December elections. The company that sent out voter registration forms for the election is called Indra Systems. It is a private company. It is not a neutral branch of the public administration. The company that arranges ballots at the polling stations is called Indra Systems. The company that will collects and disseminates the results is called Indra Systems. One of the major shareholders of Indra Systems, the Spanish sovereign wealth fund, has as its Chief Executive Officer a politician associated with the Partido Popular. This Chief Executive Officer was imposed by the Partido Popular. Partido Popular is a client of Indra Systems. Partido Popular is standing in the 21 December elections. Indra Systems will be counting the votes of its own client. That client is associated with a politician appointed by Partido Popular to the Board of the biggest shareholder of Indra Systems. This is a conflict of interests. The people of Catalonia cannot trust an electoral system in which a private company that has such close commercial and political relations with one of the political parties standing in the election is organising and counting the votes. The fear is that this private company may not be neutral. It is a commercial company, and it has a commercial motive to be biased. It is motivated to help its client win, because then its client may send it more work and therefore more money. Things get worse. Indra Systems is accused of participating in a corruption scheme involving the Partido Popular. The Economic Crimes Unit of the National Police has accused Indra Systems associates of paying bribes / kickbacks to the Partido Popular and/or its senior politicians; diverting funds from state contracts for other purposes; and maintaining inappropriately close relationships with the Partido Popular and its senior politicians. These accusations have not yet been proven. But they have been reported widely, and the accusations are made by a credible source. That source is the Spanish police division in charge of major corruption cases. Whether or not these allegations are true, the voters in Catalonia may justifiably fear whether Indra Systems can be trusted until the matter has been resolved. Indra Systems should step aside until the allegations are resolved. The fact that Indra Systems is involved in the Catalan elections in the interim is concerning. It is important to repeat that Indra Systems is a private company. This means that Indra Systems cannot be the subject of the same sorts of legal proceedings as if it were a public entity. Organs of the public administration can have their decisions reviewed by administrative courts, whereas private companies generally cannot. The use of a private company to organise elections deprives citizens of important legal rights they would have if a public body were doing the same thing. This point is worth illustrating with a practical example. Counting paper ballots inevitably involves some risk of inaccuracies. That is because the process of counting is repetitive, and mistakes may be made. A typical margin of error might be 0.5%. Therefore it is normal in democracies that if a candidate loses a vote by 0.5%, he or she may ask for a recount. If the organisation counting the ballots refuses to grant a recount, their decision may be subject to judicial review in an administrative court. But if the organisation counting the ballots is a private institution, that sort of remedy may not be available.
These concerns of bias are compounded by multiple structural problems in the electoral system that have mostly received scant attention. Once an election is called, the local administrations send out registration cards to voters at their registered addresses, confirming that they are eligible to vote and informing them of the polling station where they should vote. These voter records of names and addresses are kept by the National Institute of Statistics, INE, in Madrid. A substantial number of people change address between elections. The procedure for updating one s address is cumbersome, and there is no compelling reason to do it (other than receiving one s electoral registration card). Therefore a significant proportion of the electorate is not registered to vote at the correct address. Although accurate statistics are hard to come by, it is estimated by some that within Catalonia outside Barcelona, as many as 40% of voters may be registered with the wrong address. In principle these voters can still vote. They can do this by presenting their identifications at the polling station referred to on the registration card sent to their wrong address and which they are therefore presumed, in most cases, not to have received. However this is a lot of effort. Without their registration card, the putative voter must research for themselves where their local polling station will be. Studies show that the more difficult it is to vote, the less likely it is that a person will vote. They may not want to travel across town, and they may be disinclined to research where they are registered to vote. If a voter does find the polling station where they are registered, then they can vote just by showing identification and without proving their address. The very high turnouts typical in Catalan elections are therefore surprising, given that so many people may not have received their electoral registration cards. Nevertheless Catalans are enthusiastic voters, at least in officially sanctioned elections. The 2015 regional elections to the Catalan parliament were called prematurely and with short notice. This is the same as the 21 December 2017 elections. The 2015 elections had a registered turnout of some 74.9%. This is remarkable given the extent of incorrect voter address records. This time, turnout is predicted to be even higher. One curious feature of the Catalan elections is the number of postal votes. In 2015 this was some 3.5% of ballots cast. That is high. It is all the more remarkable given the procedure adopted for postal votes. A postal voter must present his or her ballot paper at a post office or foreign embassy by a stipulated date, together with a copy of their voter registration card (which they will presumably not have received if their address is not correctly registered). For the 21 December 2017 elections, the deadline for registering as a postal voter expired on Tuesday 12 December 2017. Therefore the earliest that Indra Systems Electoral Census Office could have mailed the voting forms to postal voters was 13 December 2017. The earliest a postal voter could reasonably have received that voting form was Thursday 14 December 2017: assuming 24-hour postal delivery. The deadline for filing one s postal vote is Sunday 17 December 2017. On the most optimistic (and unlikely) scenario, the time for making one s postal vote is three calendar days: of which two days are the weekend. A 2017 repetition in the high number of 2015 postal votes would be unusual. It would give rise to grounds for concern. A high turnout, given the large proportion of voters whose addresses are incorrectly registered, also gives cause for concern. Those concerns are magnified by the fact
that the company responsible for arranging the elections has intimate and allegedly corrupt commercial relations with one of the parties standing in the election. Those concerns are further compounded by the absence of election observers upon decree of Madrid. They are compounded still further by the fact that because the entity organising the election is not a public body, its decisions are not subject to judicial review as they would be were it an administrative organisation. Those concerns are amplified still further by the low quality of Spain s rule of law. What is a Catalan voter, faced with these concerns, to do? The answer is that they must vote. The best way of defusing the risk of electoral fraud is to vote. If real people actually vote, then electoral fraud becomes harder. If people do not vote, then other people may vote on their behalves. People who do not vote may have their votes stolen from them. This is electoral fraud. The best way of reducing the risk of electoral fraud is to vote, so that fraudsters cannot steal your vote. The international community must watch the elections on 21 December 2017. The people of Catalonia need to watch those elections as well. There are sufficient grounds for concern. Madrid has effectively annexed Catalonia and abolished its regional government. Therefore Madrid is responsible for the conduct of the Catalan elections. There are reasons to be concerned that those elections may not be entirely free and fair. To the extent that they are not, the participation of Indra Systems indicates that any irregularities may lean in favour of Partido Popular and its proxy parties. Everyone must be vigilant. Everyone must vote, no matter how arduous or inconvenient. Rule of law and democracy go hand in hand. If one is jeopardised, then the other will surely suffer the same fate. Matthew Parish is an international lawyer based in Geneva. www.matthewparish.com +++