TSJ CANNOT HEARD OF ELECTIONS IF THE CNE DOES NOT COMPLETE ITS WORK ACCORDING TO THE LAW | José Francisco Conte Capozzoly

The Supreme Court of Justice, in response to Nicolás Maduro’s request for protection, agreed to summon the candidates from the last elections on July 28 to appear before the corresponding Electoral Chamber of that supreme body of justice, passing the situation from the national electoral body to that judicial instance, but whose content has not been revealed in order to know specifically what that request consists of; however, it is quite strange that the one who has declared himself the “winner” is the one who goes to request that protection, since judicial bodies or courts exist to protect rights that have been violated, and consequently, whoever claims to be the winner is going to go to that judicial instance to request the protection of which right, despite the fact that the minutes that appear do not declare him the winner.

We must point out that, in our opinion, resorting to this judicial body is a big mistake, firstly, because the CNE has not finished its work, but secondly, this TSJ is seriously questioned for its bias in favor of the President and the ruling party, presided over by a person who is an active member of the ruling party, having been a councilor in Caracas; this, in our opinion, is another mistake in this series of errors and pirouettes that are made out of desperation, to try to ratify a condition that they already said in advance was the “winner.”

An electoral process is a complex procedure, which is made up of six stages, first the voting act that begins with the installation of the electoral tables, the act opens in which the voters go to vote, choosing their candidate on the machines and these issue a voting certificate in which it is shown which candidate was chosen, these ballots are introduced into a ballot box or voting box; once the voting act is concluded, the counting of votes begins, in which the machine that is at the electoral table counts the minutes or votes that have been given there, adding up all the votes and will issue a counting report that is signed by the members of the tables (president, vice president and secretary), the representatives of the candidates and the electoral witnesses; the following procedure is followed: to compare how many people voted, who voted, and how many people did not vote, placing the legend “I did not vote” in the boxes of those who did not vote, and this is also signed by the machine operator. After this act of counting, the machine sends data to the totalization room located at the CNE headquarters, to begin the totalization stage, in which there is an automated system in which each of the machines sends the data of the counting that it has done on each of those machines to a central server; All the members of the table and electoral witnesses have the minutes issued by the machine, a minute that has an alphanumeric code and a QR code, when these minutes are sent to the totalization center, the act of totalization takes place immediately, and after this totalization takes place, there may be a first partial totalization bulletin, in which the members of the CNE, that is, the five rectors of the CNE appear before the country, validating in the company of the central or national electoral witnesses of each of the competing candidates, validating this bulletin that a partial totalization minute has been produced; that is, a first bulletin with a significant percentage is read to the country, where the public is told what the trend is in the election.

In the early hours of Monday, July 29, the President of the CNE came out reading a first bulletin where supposedly there are 80 percent of the total votes, but there is another 20 percent that is around two and a half million votes, and there has not been a second bulletin or bulletin of final results, so it is not known what happened to the remaining votes. Once all the minutes sent to the totalization center have been totaled, the adjudication will take place, which can only take place when the final total has taken place; after this comes the act of proclamation: In our case, there has not been a bulletin with the final total of the votes counted, and the adjudication and proclamation have already taken place, without having taken place according to the parameters of the Organic Law of Electoral Processes and its General Regulations the totalization of all the minutes.

On the other hand, the electoral audit phase, which consists of the audit of the automated system, which is carried out through a draw and the system is audited in some tables, has not been completed, since the other audit that is carried out is the citizen audit, which is carried out at the time when the voting act concludes and the electoral scrutiny takes place together with the electoral witnesses.

Therefore, it is a six-stage process, which has not been fully concluded, but one person has already been declared the winner of the elections. In this sense, we consider that the CNE is indebted to the Venezuelan people, since it has to comply with the Law of Electoral Processes, with the Regulations of the Law and with the norms regarding electoral auditing, so the CNE has to resume the leadership of the process.

We believe that the only thing that can allow a citizen to go to court, in this case to the Electoral Chamber of the TSJ, is an administrative act, and here not all the stages of the electoral process have been complied with, there is no administrative act.

We must emphasize that in that first bulletin issued with 80 percent of the results, only the President of the CNE appears, who does not have that exclusive authority, since the CNE is a collegiate body, which is made up of 5 rectors, and in that act he was only accompanied by some members but not all of the CNE; but it has also been pointed out that the bulletin read by the President of the CNE did not leave the totalization room, since a totalization was never made there, as the candidate Enrique Márquez has pointed out.

In the legal field there is a maxim that says that “whoever affirms a fact has to prove it”, that is, if as has been pointed out there was a hack to the system, where is the evidence of the hack of the automated system?; then what better proof if there was any hack of the automated system than if it had been carried out on Monday, July 29 in the morning, as provided for in the General Regulations of the Law of Electoral Processes, the audit of the system, that is, the audit by draw or random of the tables. Why was it not done if it is stated that there was a hack?, which was the way to demonstrate that there was a hack. We ask ourselves: Why has the second bulletin not been done? Why are the minutes that appear in a cloud to which we can all access giving the citizen Edmundo González Urrutia as the winner with more than 70%?

All these doubts are what have led to a popular reaction even in the popular sectors, where people have reacted because they feel they have been cheated in the manifestation of their vote, until there is an act of true transparency, such as demonstrating the minutes, and not submitting it to a supposed expertise of the TSJ, they should be the minutes issued by the tables, which have their code; it is necessary to find a way out that generates trust in all the actors involved in elections like these; it is not the TSJ (which is not free from suspicion of political bias).

Given all this, we believe that the CNE has not finished its work; it must finish it. The entire procedure in the Organic Law of Electoral Processes must be followed in order for it to be reliable. The members of the CNE must abide by what is established in that Law and its General Regulations.

From a legal and political standpoint we can say that if we lived under an authoritarian regime, in the face of the repression that exists throughout the country, we have jumped from that authoritarian regime to a totalitarian regime, a statement that we make with great concern, because the elections of July 28 show us that Venezuelans opted for a peaceful way out to resolve their political differences, such as voting. We waited for elections (not with sufficient guarantees, with favoritism of the official candidate, with intervened parties, where the registration of candidates was not allowed, with politicians unconstitutionally disqualified, disqualified and intervened parties), and despite all these limitations in the elections, Venezuelans decided to resolve our differences through voting.

When the CNE does not do its job, when it does not fully comply with the Organic Law of Electoral Processes and its Regulations and above all does not comply with what is established in the Constitution of the Republic, what is undermining the peace of Venezuela is what exists today, and what exists is a cruel, savage totalitarianism, where no one who thinks differently can be in the country because they are criminalized.

*Attorney José Francisco Conte Capozzoly