Report of the National Lawyers Guild Delegation on the April 14, 2013 Presidential Election and...

7/29/2019 Report of the National Lawyers Guild Delegation on the April 14, 2013 Presidential Election and Expanded May-Jun

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NLG Report: The April 14, 2013 Presidential Election and Expanded Audit in Venezuela 1

Report of theNational Lawyers Guild Delegation

on the April 14, 2013Presidential Election and Expanded

May-June Audit in Venezuela

August 26, 2013


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NLG Report: The April 14, 2013 Presidential Election and Expanded Audit in Venezuela2

Contents

Executive Summary 3

Background 5

Observations 6

1. The election process was air, transparent, participatory, and well-organized 6

2. Media coverage prior to the election avored opposition candidate Henrique Capriles 8

3. The National Electoral Council (CNE) is a credible agency that is in place to ensure a air,democratic electoral process in Venezuela 8

4. The current electoral system is the product o extensive logistical and technological advances,with important saeguards including the electronic vote and the Citizens Audit 9

5. The additional audit o the vote requested by Capriles was superuous and political in nature 10

6. The extended audit confrmed the results o the election and reafrmed the transparency andaccuracy o the electoral system 12

7. Legal challenges to the election were without merit. 13

8. The United States should recognize the Maduro administration as the result o a sovereign,transparent, and democratic process 17

Conclusions and Recommendations 19


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Executive Summary

On April 14, 2013, over 79 percent o the electorate participated in the special elections to determine thenext president o the Bolivarian Republic o Venezuela. Ncols Maduro Moros won the election with50.61% o the vote (7,587,579 votes) to Henrique Capriles Radonskis 49.12% (7,363,980 votes).1 Whilethe margin is small, it is comparable to close elections in the United States, such as the margins o victory orKennedy in 1960 and or Bush in 2000 and 2004. 2

Te National Electoral Council (CNE) administers the Electoral Power, one o the ve independent brancheso government set orth in Venezuelas 1999 Bolivarian Constitution. Te CNE oversees and guarantees theaccuracy and transparency o all elections and reerendums in Venezuela at the local, regional, and nationallevels.3 Results were announced when 99.12% o the votes were in and 54 percent o the votes had beenaudited per standard election procedures. In her presentation o the results at 11 p.m. on election-day, CNEPresident ibisay Lucena stated that the CNE waits until there is no possibility that the results will changeand that the outcome was thereore irreversible.

In the days leading up to the election, Mr. Capriles reused to sign a National Electoral Council documentto guarantee that he would recognize the results o the election, although the document was signed by allother candidates.4 Te polls at that point were predicting a 10% lead by Maduro. Capriles contested theresults immediately ater they were announced and demanded an additional audit o the vote, alleging voting

irregularities. Te United States government - alone among nations - supported Capriles call or an auditand reused to recognize the results.5 Te Organization o American States (OAS) and governments romacross Latin America and the Caribbean recognized the election results.6 Most o these countries had sentrepresentatives to monitor the April 14 election.7 Nicols Maduro Moros was sworn-in as President on April19, 2013. Representatives rom 61 dierent countries attended the swearing in ceremony, including eightpresidents rom UNASUR and seventeen heads o state.8 Te United States was represented by a delegaterom its embassy in Caracas.9

Te U.S. governments non-recognition o the election results exacerbated tensions in the highly polarizedenvironment ollowing the election. Post-election protests with pots and pans erupted, resulting in deathsreportedly o Maduro supporters and numerous injuries.10 Government health clinics, ood distribution centersand other institutions were also targets o political unrest.11

Te CNE responded to the opposition by stating that they were required to ollow the Constitution andavenues provided in the law.12 At the CNEs insistence, Capriles submitted a written request or a recounton April 17, 2013.13 From our own review o the complaints, we nd that the allegations o intimidationand electoral raud were largely rhetorical and unsubstantiated, lacking sworn statements o witnesses, clearevidence o wrongdoing, or o any impact on the election.

On April 18, 2013, to assuage the threat o continued unrest and restore condence in the electoral results,the CNE agreed to an expanded audit o the remaining 46 percent o the paper receipts (Citizen VericationPhase II).14 Te CNE began conducting the audit o 350 machines per day during three ten-day periods inront o party witnesses. Te additional audit was expected to be completed and the results available in early

June. Once the CNE agreed to perorm the additional audit, Capriles announced that his party and the Mesade la Unidad Democrtica (MUD) would reuse to participate. Te extended audit reportedly eased tensions,

but the legal process continued due to multiple complaints containing allegations o irregularities that wereled with the Electoral Chamber o the Supreme Court (SJ).

A delegation o National Lawyers Guild (NLG) election monitors rom the United States joined 165 otherinternational monitors and 3000 national observers. We visited 35 polling centers in ve states on electionday. In addition, the NLG delegation observed the set-up o polling centers and testing o voting machinesprior to election day and had the opportunity to hear representatives o the Maduro and Capriles campaigns.A second NLG delegation returned to Venezuela in mid-May to early June to observe the expanded Audit.

Te NLG delegation makes the ollowing ndings, which are described more ully in this report:


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On April 14, 2013, over 79 percent o the electorate participated in the special elections to determine the next president o the Bolivarian Republic o Venezuela. Ncols Maduro Moros won theelection with 50.61% o the vote (7,587,579 votes) to Henrique Capriles Radonskis 49.12% (7,363,980 votes). 1 While the margin is small, it is comparable to close elections in the United States,such as the margins o victory or Kennedy in 1960 and or Bush in 2000 and 2004.2

Te National Electoral Council (CNE) administers the Electoral Power, one o the ve independent branches o government set orth in Venezuelas 1999 Bolivarian Constitution. Te CNE overseesand guarantees the accuracy and transparency o al l elections and reerendums in Venezuela at the local, regional, and national levels.3 Results were announced when 99.12% o the votes were in and 54percent o the votes had been audited per standard election procedures. In her presentation o the results at 11 p.m. on election-day, CNE President ibisay Lucena stated that the CNE waits until thereis no possibility that the results will change and that the outcome was thereore irreversible.

In the days leading up to the election, Mr. Capriles reused to sign a National Electoral Council document to guarantee that he would recognize the results o the election, although the document was signedby all other candidates.4 Te polls at that point were predicting a 10% lead by Maduro. Capriles contes ted the results immediately ater they were announced and demanded an additional audit o the vote,alleging voting irregulari ties. Te United States government - alone among nations - supported Caprile s call or an audit and reused to recognize the results.5 Te Organization o American States (OAS)and governments rom across Latin America and the Caribbean recognized the election results. 6 Most o these countries had sent representatives to monitor the April 14 election. 7 Nicols Maduro Moros wassworn-in as President on April 19, 2013. Representatives rom 61 dierent countries attended the swearing in ceremony, including eight presidents rom UNASUR and seventeen heads o state. 8 Te United

States was represented by a delegate rom its embassy in Caracas. 9

Te U.S. governments non-recognition o the election results exacerbated tensions in the highly polarized environment ollowing the election. Post-election protests with pots and pans erupted, resultingin deaths reportedly o Maduro supporters and numerous injuries.10 Government health clinics, ood distribution centers and other institutions were also targets o political unrest.11

Te CNE responded to the opposition by stating that they were required to ollow the Constitution and avenues provided in the law.12 At the CNEs insistence, Capriles submitted a written request or arecount on April 17, 2013.13 From our own review o the complaints, we nd that the allegations o intimidation and electoral raud were largely rhetorical and unsubstantiated, lacking sworn statementso witnesses, clear evidence o wrongdoing, or o any impact on the election.

On April 18, 2013, to assuage the threat o continued unrest and restore condence in the electoral results, the CNE agreed to an expanded audit o the remaining 46 percent o the paper receipts(Citizen Verication Phase II).14 Te CNE began conducting the audit o 350 machines per day during three ten-day periods in ront o party witnesses. Te additional audit was expected to becompleted and the results available in early June. Once the CNE agreed to perorm the additional audit, Capriles announced that his party and the Mesa de la Unidad Democrtica (MUD) would reuseto participate. Te extended audit reportedly eased tensions, but the legal process continued due to multiple complaints containing allegations o irregularities that were led with the Electoral Chambero the Supreme Court (SJ).

A delegation o National Lawyers Guild (NLG) election monitors rom the United States joined 165 other international monitors and 3000 national observers. We visited 35 polling centers in vestates on election day. In addition, the NLG delegation observed the set-up o polling centers and testing o voting machines prior to election day and had the opport unity to hear representatives o theMaduro and Capriles campaigns. A second NLG delegation returned to Venezuela in mid-May to early June to observe the expanded Audit.

Te NLG delegation makes the ollowing ndings, which are described more ully in this report:

Te election process observed by the NLG delegation on April 14, 2013, was air, transparent, participatory, and well-organized;

Private media coverage in Venezuela leading up to the elections avored opposition candidate Capriles, where privately owned and paid television stations constitute between 90 to94 percent o viewership in Venezuela15;

Given the security procedures embedded in the electoral process, there was no reason to expect that an expanded audit would produce a result that diered rom the random, hotCitizens Audit o 54 percent o the vote that was conducted ater the polls closed on election day;

Te expanded audit conducted by the CNE did, in act, conrm that Venezuelas electronic electoral system is accurate and allegations o raud were without merit;

Despite recognition by virtually all Latin American countries, including Colombia, Mexico and Chile, the United States continues to isolate itsel, ailing to armatively recognizethe outcome o the election, or to send any high level representatives to the swearing in ceremony o President Nicols Maduro;

\Sophisticated technology is used to eliminate all possibilities o raud or manipulation o data;

Voting machines issue a paper receipt that can be viewed by the voter to conrm that his or her vote has been properly registered; and

Tese paper receipts are placed by the voters in traditional ballot boxes and, ater the polls close, 54 percent o those boxes are counted manually through a citizen vericationprocess to ensure that the nal tape rom the voting machine is correct.

1. Te margin o victory or Mr. Maduro announced by the CNE on the night o the election increased slightly once the complete numbers were tallied, butsubsequently dropped slightly when the votes rom the exterior were included. Seehttp://www.cne.gob.ve/resultado_presidencial_2013/r/1/reg_000000.html?2. SeeSamantha Levine, Te Legacy o the Hanging Chads, U.S. News and World Report ( Jan. 17, 2008), http://www.usnews.com/news/articles/2008/01/17/the-legacy-o-hanging-chads andPresidential Elections, http://www.history.com/topics/presidential-elections/page4.3. Consejo Nacional Electoral, Concepto, http://www.cne.gov.ve/web/la_institucion/concepto.php.4. amara Pearson, Capriles Attacks Venezuelan Electoral Council, Reuses to Sign Document, Venezuelanalysis.com (Apr. 9, 2013), http://venezuelanalysis.com/news/8563.5. Paul Eckert, US holds back recognition or Venezuelas Maduro, REUERS (Apr. 17, 2013), http://www.reuters.com/article/2013/04/17/us-venezuela-usa-kerry-idUSBRE93G0MJ20130417; See also William Neuman, Kerry Encourages Venezuela Recount, NYIMES online (Apr. 17, 2013), http://www.nytimes.com/2013/04/18/world/americas/kerry-encourages-recount-in-venezuela.html?_r=1&.6. Declaracion del Consejo de Jeas y Jees de Estado y de Gobierno de la Unin de Naciones Suramericanas (Unasur), (Apr. 19, 2013) (Declaration o the Heads o Stateand the Government o the Union o South American Nations), http://www.unasursg.org/inicio/centro-de-noticias/archivo-de-noticias/declaraci%C3%B3n-de-los-jees-de-estado; See also Leaders rom Across Latin America Congratulate President Maduro , http://www.venezuelasolidarity.co.uk/leaders-rom-across-latin-america-congratulate-president-maduro-call-or-ocial-results-to-be-respected/ .7.Id.8. Shobhan Saxena, Backed by Latin America, Maduro sworn in as Venezuelan President,imes o India (Apr. 20, 2013),http://articles.timesondia.indiatimes.

com/2013-04-20/rest-o-world/38692755_1_nicolas-maduro-diosdado-cabello-presidential-election ; see also Andrew Rosati, ough-talking Maduro issworn in as President, Te Miami Herald (Apr. 19, 2013) http://www.miamiherald.com/2013/04/19/3354325/tough-talking-nicolas-maduro-is.html.9.Id.10. Paula Newton, Catherine E. Shoichet, ensions mount ater tight Venezuelan vote, CNN online (Apr. 17, 2013),http://www.cnn.com/2013/04/16/world/americas/venezuela-elections-unrest .11.Id.12. April 27, 2013 Statement by ibisay Lucena (CNE) Parameters or Citizen Verication, Phase II available (Spanish) at http://cne.gob.ve/web/sala_prensa/noticia_detallada.php?id=3177 (hereinater, April 27th CNE Statement).13. SeeEquipo de Capriles Pidio ormalmente el Recuento de los votos, LaRepublica.pe, (Apr. 17, 2013), http://www.larepublica.pe/17-04-2013/equipo-de-capriles-pidio-ormalmente-el-recuento-de-los-votos .14. See supra note 12.15. Mark Weisbrot, Tara Ruttenberg, Television in Venezuela: Who Dominates the Media?Center for Economic and Policy Research (December 2010),http://www.cepr.net/documents/publications/2010_12_venezuela_media.pdf. (CEPR 2010 Media Report).

Te election process observed by the NLG delegation on April 14, 2013, was air, transparent,participatory, and well-organized;

Private media coverage in Venezuela leading up to the elections avored opposition candidateCapriles, where privately owned and paid television stations constitute between 90 to 94 percento viewership in Venezuela;15

Given the security procedures embedded in the electoral process, there was no reason to expectthat an expanded audit would produce a result that diered rom the random, hot Citizens

Audit o 54 percent o the vote that was conducted ater the polls closed on election day; Te expanded audit conducted by the CNE did, in act, conrm that Venezuelas electronic

electoral system is accurate and allegations o raud were without merit;

Despite recognition by virtually all Latin American countries, including Colombia, Mexico and Chile,the United States continues to isolate itsel, ailing to armatively recognize the outcome o the election,or to send any high level representatives to the swearing in ceremony o President Nicols Maduro;

We urther note that while some aspects o the voting process would not be applicable in the U.S., many o theelectoral reorms implemented in Venezuela over the last ten years provide a compelling example o electionsthat are transparent, streamlined and accessible to voters. Similar reorm in the U.S., including the ollowing,

would help dispel the perception o unairness and to restore the credibility o our own democratic processes:

Elections are held on Sundays to make it easier or working people to vote; A major, well-nanced outreach eort has resulted in dramatic levels o voter registration and

political participation;

Sophisticated technology is used to eliminate all possibilities o raud or manipulation o data;

Voting machines issue a paper receipt that can be viewed by the voter to conrm that his or hervote has been properly registered; and

Tese paper receipts are placed by the voters in traditional ballot boxes and, ater the polls close,54 percent o those boxes are counted manually through a citizen verication process to ensurethat the nal tape rom the voting machine is correct.


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Background

On October 7, 2012, with voter turnout at 80%, Hugo Chvez won his ourth term as President by a margino almost 11% against Henrique Capriles. (A copy o the NLGs report rom the October 7, 2012 Presidentialelection in Venezuela is available here). President Chvez died on March 5, 2013. Per Article 233 o theBolivarian Constitution, new elections were required to be held within 30 days o the death o the President.Despite the short time rame and technological and logistical complexity o Venezuelas electoral system, theCNE was able to distribute electronic voting equipment and supplies to more than 38,000 mesas or votingstations and to provide or randomly selected and trained poll sta at each one.

An initial, ve-member NLG delegation ormed part o a larger delegation o over 130 parliamentarians,electoral commission members, journalists, and representatives o human rights NGOs rom across the world,including ormer Presidents o the Dominican Republic, Guatemala and Panama, and representatives romthe Carter Center. Te CNE arranged or international accompaniers to travel to polling places throughoutthe country on election day to monitor the electoral process. In addition to the electoral accompaniers invitedby the CNE, the Union o South American Nations (UNASUR) also sent a delegation o approximately 40international observers.

Te rst NLG delegation arrived several days in advance o the elections. Te CNE organized a series oseminars to inorm international accompaniers and observers about the electoral process and logistics, and

arranged or the opportunity to hear rom representatives o the Maduro and Capriles campaigns. We alsomet independently with labor leaders, lawyers, judges, and opposition journalists.

A second NLG delegation traveled to Venezuela ater the election to observe the expanded audit that had beenrequested by the opposition candidate, Henrique Capriles, and approved by the CNE.


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Observations

1. The election process was air, transparent, participatory, and well-organized

Te ollowing is a description o the voting process organized by the CNE, which the delegation ound tobe exemplary:

Torough maintenance and security o voting machines. Prior to the election, voting machines

are serviced and tested at the assembly and service plant in Caracas. Te machines are then sentto the voting centers where, two days prior to the election, they are set up and tested to make sureeverything unctions properly. Soldiers are stationed at all polling centers to be sure that no onetampers with the machines once they are installed. Te morning o the election, each machine isonce again tested and, with the poll workers, party witnesses and soldiers present, it is unlocked witha code and generates a tape that indicates that no votes have yet been registered. I a machine breakson election-day, the machine is either repaired on-site or replaced as soon as possible. Te on-sitetechnicians have 30 minutes to resolve matter beore contacting the regional oce or assistance.Any voting machine not repaired within 90 minutes must be replaced.

Ecient organization and voter assistance. CNE workers at polling centers the delegation visitedmoved large amounts o voters through the process in a quick and orderly manner. Virtually all

voting centers in Venezuela are in elementary schools. In most locations, there are multiple voting

stations within a center, generally in separate rooms. At every center, inormation tables direct votersto the appropriate room and provide them with slips o paper indicating the page in the registryupon which their name appears. I voters need assistance in voting (or example i they are elderly ordisabled) they are able to bring someone to assist them in voting. Te volunteer is registered and the

voter is provided with a card to present at the voting station. I voters do not have an assistant, theyare assisted by a volunteer at the polling center. One volunteer can assist only one voter during the dayto avoid any undue inuence; a written record o the assistants is kept. In many centers, voters linedup outside o the school gates as early at 3 a.m. on election morning. Tey were allowed to enter theschool in groups when the polls opened at 6 a.m. By mid-morning on election-day, we ound thatthe lines at most o the polling centers we visited had dwindled and the wait time was generally a ewminutes although occasionally as much as one hour.

Quick and simple electronic voting procedures that prevent raud through multiple fngerprintand voter ID certifcations. Once voters enter the voting station, voters ollow a horseshoe shapedprocess: showing their credentials, then placing their thumb in the ngerprint reader to generatetheir ID number and photo. Teir identity unlocks the voting machine, permitting the voter to pressthe picture o the candidate and party o his or her choice on the large touch board, which is thenconrmed on an adjacent electronic screen where the voter is asked to veriy his or her selection bypressing the votar button. Te machine then issues a paper receipt with the name o the candidateor whom the voter has voted, permitting the voter to double-check that his or her vote was properlyrecorded. Te voter then olds the receipt and places it in a traditional ballot box in plain view oelectoral witnesses. Finally, the voter dips his or her pinky nger in indelible purple ink moresymbolic than practical, given the electronic ngerprint verication to sign and place a ngerprintin the registry as a nal verication o identity and participation. Tis entire process ranged induration rom 35 seconds to 10 minutes.

Active participation by party witnesses and national and international observers. Every pollingstation (mesa) had witnesses rom each campaign, in addition to the randomly selected poll workerstrained by the CNE. All witnesses and poll workers signed a certication o election validity at the endo polling and participated in the Citizens Audit at a randomly selected 54 percent o the mesas, in

which the machine results were compared with the ballot receipts that had been issued by the votingmachine and placed by the voter in a sealed box. Observers rom the national election observationgroups, as well as international accompaniers such as ourselves, were ree to ask questions o all poll

workers, witnesses and voters, and were invited to observe the Citizens Audits. We ound witnessesrom both sides enthusiastic about the level o turnout and the smooth operation o the process.


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In all areas the delegation visited, we encountered very ew problems on election day. Our ve person delegationspent the day o the election in our states around the country Lara, Carabobo, Zulia and Barinas - and in thecapital city, Caracas. We were able to speak to voters, election ocials and political party representatives. ourther assess the impartiality o the process, our delegates made a point o engaging with witnesses o each othe represented campaigns to inquire about any irregularities.

In a ew cases we were inormed that there had been problems with machines, but in all but one case the machineswere quickly xed or replaced per the electoral regulations. It should be noted that all voting centers are equippedwith CNE technicians and replacement machines. In the event that this is insucient, paper ballots provideurther backup. Tere were only 36 cases in the entire country in which paper ballots needed to be used.

Te NLGs delegation to Venezuela in October 2012 had, along with other international observers, noted longlines in some voting centers. We were inormed that the CNE responded to this problem by placing additionalmachines and personnel at the inormation tables and by replacing the sotware that searches or voters withinthe database. We saw some lines early in the morning as voters queued up prior to the opening o the polls.Once the voting process was under way we ound that the lines moved rapidly and in an orderly ashion.

Our previous delegation had also reported to the CNE that due to the orm o the ballot, it was oten possible todetermine the candidate a voter selected rom the position o the voters arm (there were two major candidates

who had each been endorsed by multiple parties, with one group o parties on the upper and the other onthe lower portion o the screen). Although there was no indication o abuse, the international monitorsrecommended raising the height o the privacy screen to eliminate this potential problem. We were pleased tonote that higher screens were utilized in virtually all the locations we visited in April.

In addition to the advanced voting procedures, the CNE has made substantial eorts to increase voterregistration and accessibility to voting centers, which have resulted in a consistently high voter turnout. As aresult o these eorts, 96.5 percent o all eligible voters are registered to vote.16

In short, we observed an ecient process and were impressed both by the level o democratic participation andby the sophisticated and secure electronic system whose results were conrmed by an audit o 54 percent o thepaper receipts issued by the voting machines.

16. See Report o the National Lawyer Guild (NLG) Delegation on the October 7, 2012 Presidential Election in Venezuela (January 2013), http://www.nlg.org/nlg-report-presidential-election-venezuela. (Report o NLG Delegation rom 2012).


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2. Media coverage prior to the election avored opposition candidate Henrique Capriles

Based on an analysis o the Venezuelan media prior to the October 2012 presidential elections, oppositioncandidate Henrique Capriles enjoyed a media advantage in April 2013, just as he did in October 2012. 17

While the Venezuelan and international media largely claim that the incumbent Maduro, as with ormerPresident Chvez, enjoyed media access to state-run television networks, state television in Venezuela has onlyabout a 6 percent audience share, versus a 94 percent share or private and opposition media television outlets.18

While state media appeared to show a strong bias in avor o incumbent candidate Maduro, there was also

some balanced reporting. For example, members o our delegation saw state-run channel VV (Venezolanade elevisin) broadcast Capriles campaign ads in the campaign days ahead o the elections.

Any bias in state media likely did not have a large, i any, inuence on election support or Maduro. Caprileshas enjoyed lopsided media coverage in his avor on the private television channels watched by mostVenezuelans. CNE analysis in the summer prior to the October 2012 elections ound an overwhelming mediaadvantage or Capriles.19 During the rst week o the 2012 presidential campaign, national television channelsVenevision and eleven allotted 1,680 seconds and 4,500 seconds, respectively, to Capriles but only 900 and540, respectively, to Chvez. Globovision, a regional channel with a broad reach and large audience, gave aboutnine times as much avorable coverage to Capriles, 30,480 seconds, versus 3,360 to Chvez. According to theCNE study, state-run national broadcaster VV allotted 12,180 seconds to Capriles versus 30,360 or Chvezin 2012, but the total o the our major television channels was 48,840 to 35,150 seconds in Capriles avor.20

Analysis o media coverage o the two candidates 23 weeks ahead o the 2012 elections by the UniversidadCatlica Andrs Bello also ound a distinct media advantage or Capriles in newspaper (1,136 mentions versus735 or Chvez) and television (812 mentions versus 708 or Chvez) coverage, while Chvez had an advantageon radio broadcasts (474 mentions versus 376 or Capriles).21 Tere is little reason to think this private mediaadvantage in Capriles avor would have signicantly declined between the October 2012 and April 2013 elections.

Criticism o Maduros incumbent advantage in his requent use o cadenas (presidential addresses that broadcastoutlets are required to carry) may be more justied. Looking again at the Universidad Catlica Andrs Bellosmonitoring o television coverage in the 2012 campaign, however, reveals that Capriles had an advantage ontelevision even when Chvezs cadenas were included.22 It is not yet clear whether cadenas were employed lessor more requently by Maduro during the 2013 presidential campaign than by Chvez in the 2012 campaign.

3. The National Electoral Council (CNE) is a credible agency that is in place to ensure a air,democratic electoral process in Venezuela

Te U.S. press repeatedly reers to the Venezuelan National Electoral Council as i it were controlled by theExecutive previously Hugo Chvez and now Nicols Maduro. However, the 1999 Bolivarian Constitutionmakes the electoral power one o ve independent powers (Executive, Legislative, Judicial, Citizens, andElectoral). No member o the ve-member National Electoral Council (CNE) can be active in a politicalparty or organization. Tree members are nominated by civil society, one by the schools o law and politicalscience o the national universities, and one by the Citizens power; and all are elected or a seven year term bya 2/3 vote o the National Assembly.23

Te CNE has its own Organic Electoral Law (LOPE), regulations, sta, budget, and there is a SupremeCourt Electoral Chamber to which its decisions can be appealed. Under the Venezuelan Constitution and law,

17. Report o the NLG Delegation rom 2012, supra, note 16.18. CEPR 2010 Media Report, supra, note 15.19. Eleazar Daz Rangel, Los medios y los candidatos, ltimas Noticias (July 15, 2012), http://www.ultimasnoticias.com.ve/opinion/rmas/los-domingos-de-diaz-rangel---eleazar-diaz-rangel/los-medios-y-los-candidatos.aspx .20.Id.21. Universidad Catlica Andrs Bello,Monitor Electoral Presidencial 2012, http://www.monitorelectoral.org.ve/22.Id.23. 1999 Bolivarian Constitution, Article 296.


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the President o the Republic is the one branch o the government that has no control over the Electoral Power.Like the majority o the Venezuelan people, CNE leadership and sta may support the current trend toward 21stCentury Socialism in Venezuela, but it is clear that they are expected to stay above the politics in their ocialcapacities as part o Venezuelas well-established Constitutional electoral system and seek to do so in practice.

We have ound the CNEs President, ibisay Lucena, and the other members o the CNE and its sta to beconsistently concerned with perecting the electoral process to ensure that every Venezuelan adult has accessto the polls and every single vote is counted, regardless o party aliation or candidate.

Te CNE contributes to a culture o political participation. Trough the logistics that are in place or theelectoral process and citizen audit, individual citizens are able to orm part o the process. Tousands orandomly selected volunteers are trained to supervise and sta all polling centers, in addition to the CNEleadership and sta present at all centers on election day. Venezuelans o all political persuasions take pridein the organization and eciency o the CNE. Such attention to detail and logistics has earned praise rom

Jimmy Carter, who has called the Venezuelan electoral system the best in the world.

4. The current electoral system is the product o extensive logistical and technologicaladvances, with important saeguards including the electronic vote and the Citizens Audit

Te current Venezuelan electoral system is a product o the lack o trust in the previous electoral system and apolitical context where major political divisions continue to exist. Te previous system was mainly manual andcontrolled and nanced by the two most powerul political parties, AD and COPEI.

Pursuant to the LOPE, the CNE and its sta have developed a democratic and representative process bothby ensuring that all eligible voters are registered andprovided with the inormation they need in order tobe able to vote and by creating a trustworthy systemthat can be veried at every stage.

Te National Assembly provided or an automatedsystem under the LOPE, and the CNE and its sta

have worked with a team o experts to create thesystem that is oten commended as the worlds best.Over the past 14 years, the process o developingtodays electronic system has been vetted by politicalparties that support and oppose the government. Teparties were given extensive inormation to permittheir experts to examine each element in order todetect any weaknesses that might exist and to providesuggestions or strengthening the process.

Indeed, an independent auditor who had workedon designing the system inormed us that one othe suggestions rom the opposition was to shufe

the data ollowing the casting o each vote so that itwould be impossible to detect the choice o any voterrom the order in which the vote was cast (the nameo the voter was already automatically de-linked romhis or her vote). Tis suggestion was incorporatedand has become an important guarantee o privacy.

Among other protections, each machine is equippedonly with its portion o the database and operatesindependently. Tere is no connection to the CNEs


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data centers until ater the machine has been closed down ollowing its local tally o the vote. Only then is aconnection established in order to transmit the data rom the local polling place so that it can be included inthe total.

Input by political parties is not limited to the development o the process. During the period leading up to andincluding election day, an elaborate series o audits permits the campaigns to review and sign o at each stepto protect against any impropriety. Te list o the audits conducted and the signed documentation o approvalappear on the CNE web site.24

Per constitutional mandate, the April 2013 presidential election took place in a much shorter rameworkthan ever beore, leaving no time to veriy a new registry or train new poll workers. So the same registry, poll

workers and polling places were used as in the October 2012 presidential election. Te CNE also notes thatseveral additional protections requested by the Capriles campaign were approved by the CNE.25

It should be emphasized that over time the system has become entirely electronic.26 It continues to beupdated, and a relatively new (October 2012) eature is the use o ngerprint recognition sotware toincrease reliability and minimize the possibility o raud. However, as described above, the most vital eatureprotecting the will o the voter is the issuance o a paper receipt that can be used by the voter to conrmhis or her electronic vote and which is then placed by the voter in a ballot box. Te reconciliation othese receipts with the total on the tape issued by the machine during the Citizens Audit or CitizensVerication ollowing the closure o each voting center serves to conrm the high level o reliability o themachines. While a small percentage would be sucient rom a purely statistical perspective, on April 14 ththe total percentage o polling booths randomly audited in the Citizen Verication Phase I was 54%, in ahot audit immediately ollowing the election.27 Te participation in and witness o this audit by all o thepeople involved in the election the citizens who were randomly chosen and trained to conduct the election,the party witnesses, the military, and other observers also serves to reconrm the integrity o the processo the election.

5. The additional audit o the vote requested by Capriles was superuous and political in nature

Following the announcement o the election results on April 14, 2013, opposition candidate Henrique Capriles

reused to accept the ocial election result that gave a narrow victory to Nicolas Maduro.28

Capriles calledor a urther audit o receipts through a manual recount as well as demonstrations to press his demands ora ull recount.29 Although Capriles stressed he wanted peaceul protests, his call or demonstrations raisedthe tension in the period o post-electoral uncertainty in Venezuela. 30 Capriles declared that auditing theremaining 46% o the polling machines would disclose raud in the election tally sucient to change the resulto the election.31

In a public statement, ibisay Lucena indicated that [t]hreats and intimidation [were] not the path to appealthe decisions o the CNE, and requested Capriles political campaign, MUD, to submit a ormal complaint tothe CNE, as required under Venezuelas Election Law.32

24.Normativa Electoral, CNE, http://www.cne.gov.ve/web/normativa_electoral/elecciones/2013/presidenciales/index_principal.php.

25. April 27th

CNE Statement, at 2.26. One important eature o the system is that backup machines are available in all polling places. In the case o malunction, the memory rom the originalvoting machine is inserted in a back up machine and the election continues. As noted above, a manual system with paper ballots exists as a urther back-upand in the April 2013 election, only 36 had to resort to the manual system.27. Te citizens audit is conducted based on a random draw in each center that depends on the number o machines in the center. In a center with 1-2machines, 1 machine is audited. In a center with 3-6, 2 machines are audited. In a center with 7-9 machines, 3 machines are audited. In centers with 10-12machines, 4 machines are audited. In centers with 13 machines or more, 5 machines are audited.28. Brian Ellisworth and Diego Ore, Venezuela opposition demands vote recount, protests are, REUERS (Apr. 15, 2013), http://www.reuters.com/article/2013/04/15/us-venezuela-election-idUSBRE93C0B120130415.29. Id.30.Id.31.Id.Te ocial results showed Maduro winning by 265,000 votes but Capriles stated he would only concede deeat i there was a ull recount.32. See id. and see also inraSection 7 on Legal Challenges.


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Demands or a hand recount and unsubstantiated claims o intimidation and machine breakdowns servedto encourage violence and devalue the rule o law and the role o the CNE in the Bolivarian Constitutionalscheme.

A manual recount has no place in the Venezuelan electoral system where the process is entirely electronic.Reissuing the electronic results previously transmitted on election day would be pointless.33 Contrary to whatsome believe, the paper receipts that are emitted at the end o each vote are not considered to be legallyequivalent to paper ballots; they may only be used to conrm the electronic tally. Tese paper receipts are

already counted during the 54% Citizens hot audit perormed on election night. As observers o the electionprocess, it was apparent that representatives rom the opposing campaigns were present at polling place duringthe course o the day and during the Citizens Audit, which urther ensured the validity o the vote count.One o the members o our delegation spent election day and night in the opposition state o Lara, where, asexpected due to the demographic o the state, Capriles won. In Lara and other polling places, we observed notonly no irregularities, but a unctioning system and even camaraderie between the party witnesses working atthe polling stations rom sunrise to sundown.

Capriles call or a recount was consistent with the rhetoric he employed throughout his campaign. In the daysleading up to the election, Mr. Capriles reused to sign a National Electoral Council document to guaranteethat he would recognize the results o the election, although the document was signed by all other candidates.34

On April 17, Henrique Capriles Radonski led a ormal request with the CNE or an extensive audit. Terequest went beyond an expansion o the citizens audit to include, among other items, a comparison o thenumber o receipts with the number o ngerprints and signatures appearing in the voting books at everymachine. Te petition also requested the protection and production o electoral material. Documents wereattached that purported to support the allegations o various types o misconduct during the election rangingrom campaigning during election day and the use o government resources to violence near voting centers.Additional allegations reerred to acts or omissions by the CNE or government: the establishment o new

voting centers with ewer than 100 voters in each, the ailure to investigate and purge voters with the samenames and dates o birth but dierent identication numbers, the closure o consulates abroad and the closureo the border ve days prior to the election, the ailure to purge the names o the deceased rom the registry,the ailure to use the electoral rolls rom the December 2013 election, among other claims.

On April 18, 2013 the CNE conducted the legally mandated additional national audit o 0.5% o the machines

(219 machines with a total o 75,968 votes) (reerred to as Phase II o the Citizen Verication) in thepresence o witnesses rom all parties. Tey ound a consistency o 99.97%. Te Phase II audit included aurther sample o machines not included in the hot Citizens audit the night o the election.

On April 27, 2013, the CNE announced that it would extend the Phase II audit by selecting a sample o theremaining boxes, noting that in some regions this verication [the citizens audit] was extended to 60% othe polling machines. Te urther audit was to be conducted over the period o a month during three ten-day cycles, with a goal o auditing 350 machines per day over a thirty-day period, a total o 10,500, by handcounting the boxes o receipts and checking them against the total rom each machine. Although initiallyexpressing agreement, Capriles subsequently stated that the CNEs extension o the audit was insucient.

As stated in the report issued ollowing the rst audit cycle, the purpose was to prove that there is no signicantdiscrepancy between the intention o the voters which is reected in the Voting [paper] Receipts, compared

with the total count that corresponds to that Voting Machine (in accordance with Article 437 o the Generalregulations o the Organic Law o Electoral Processes 2012 -).

33. SeeLOPE, Article 133.34. amara Pearson, Capriles Attacks Venezuelan Electoral Council, Reuses to Sign Document, Venezuelanalysis.com (Apr. 9, 2013), http://venezuelanalysis.com/news/8563.


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6. The extended audit confrmed the results o the election and reafrmed the transparencyand accuracy o the electoral system

Te extended audit was conducted at the Mariches acility where all voting machines are initially assembled,inspected and serviced. Although the machines are normally brought back to Caracas or servicing betweenelections, the boxes containing the receipts and other materials are normally stored regionally, so that thismeant that the materials had to be transported to Caracas.

Te audit was designed and conducted under the purview o a technical team o thirty proessors and otherproessionals rom the Central University o Venezuela, including some who had worked closely with theCNE in developing the electoral system. Te audit was perormed by sixty university students, sixty CNEoperators and twelve supervisors rom the CNE. Tere were an additional eight coordinators who wereresponsible or the overall activities and or analyzing cases in which dierences existed which were notdocumented as justied.

Random samples were selected by computer or each day o the ten day cycle, beginning with a proportionalsample rom the Capital District and Anzoategui and continuing with samples rom two to our additionalstates per day throughout each ten day period. Although initially 700 boxes were selected, this was increasedto 800 to ensure that 350 previously unaudited boxes were available each day. Boxes containing receipts romthe 54% o polling stations covered by the citizens audit as well as additional boxes containing indicia that they

were audited the night o the election were excluded.A large space was cleared within the warehouse and three sections were set up with space in between them.Each o the three sections contained auditing stations or twenty teams who were responsible or openingthe boxes, counting the ballots, and then typing the results into a computer that indicated whether there wasa match (no dierence) or not. In the event that there was not a match, the receipts would be re-counted.I a dierence remained, it would warrant a review o the accompanying notebook and documentation. It

would then be characterized as a dierence with justication i the accompanying materials contained anexplanation. For example, a ew voters actually ate their receipts as a orm o protest. In such cases, this wouldbe noted by the poll workers. A second category was tolerable dierence. I one or two receipts were missingit would be considered statistically to be tolerable. However, i more than two were absent, this would betreated as a dierence without justication.

For security reasons, all visitors to the audit were required to leave their purses and backpacks aswell as all cameras and notebooks by the entrance. Although no photographs were permitted, the CNEtransmitted the audit live every day on its web site at: http://www.movipbox.com/nuevo/embed/cne.html. In addition, each day a report for that days results was posted.

On June 7, 2013, the CNE completed its extension o the Phase II audit. In addition, on June 8, 2013, itconducted a small additional audit: a random national sample o 250 o the boxes that contained indicia ohaving been audited at the time o the citizens audit on the night o the election, but which were in excess othe 54%.

Te CNE reported that representatives rom seven political organizations participated in the expanded auditprocess: United Socialist Party o Venezuela (PSUV), Communist Party o Venezuela (PCV), Homeland orAll (PP), Venezuelan Popular Unity (UPV), Labor Power (PL), the United Democratic Party or Peace andLiberty (PUDPL) and New Vision or my Country (NUVIPA). In addition, 84 observers rom a variety oorganizations and orty two groups composed o 250 people participated as national observers. Tey includedcomputer experts, poll workers university proessors, reghters, representatives o community and womensorganizations, diplomats, cultural workers, among others, as well as international representatives rom theNLG and Carter Center. 35

Te report by ibisay Lucena that was broadcast to the country explained: By the end o Citizen Verication,

35. 100% o April 14th Polling Booths now Audited, CNE Statement (June 11, 2013), http://www.cne.gov.ve/web/sala_prensa/noticia_detallada.php?id=3210(hereinater, June 11th CNE Statement).


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100% o polling booths installed on April 14 th had been audited, amounting to 39.018 polling booths and atotal o 15.056.716 voting slips.

O the voting slips audited, 4,596,432 showed no discrepancies whatsoever in relation to thepolling booth record o total votes cast, which represents 99.98% o the total.

Te total number o missing slips in cycles I, II, III and extra comes to 0.02% o the total.

Te conclusion o the extension o Citizen Verication in its second phase allows us to convey to the country

that the transparency, robustness and inviolability o Venezuelas electoral system is once more conrmed, andaccurately reects the will o the voter, as expressed through surage.36

With these audits concluded, the CNE returned to its routine work, such as servicing the voting machines inpreparation or the municipal elections that will be conducted on December 8.37 It is also beginning preparationsor another massive auditing process: the update o the national data base to ensure that there are no duplicatengerprints and that where multiple versions o a persons ngerprints exist the best are identied or use inuture elections. Tis is expected to take between two and three months.38

Te successul conclusion o the audit o thevoting machines is important in reconrmingor the people o Venezuela the integrity otheir electoral process. Tis will ensure thatthe December elections will ocus on thecompeting programs o the candidates ratherthan on what we view as a misplaced attackon the CNE. Te challenge that lies ahead

was addressed by Lucena: What we havewitnessed recently has been the most grotesquetransgression o the relationship betweenpolitical parties and the Electoral Branch....

We ask political organizations, what are we toexpect or December? Is it unavoidable that weshould witness another violent chapter? Wereuse to think as much, and we shall continue

to work every day, in order to saeguard ourdemocracy and the peace o Venezuela.39

7. Legal challenges to the election were without merit.

On April 27th, the CNE responded publicly to Capriles April 17 ling, noting that while Capriles had alegitimate right to challenge the election, challenges to acts and omissions by the CNE must be directed to theSupreme Court pursuant to the LOPE. In addition, the CNE stated that the document is accompanied by someannexes [ie attachments ] which would not allow the electoral branch to undertake any investigation regardingthe complaints, because they do not point out with clarity or precision what are the acts supposedly undermining

the norms: which polling booths; which records; who is involved; what is the possible harm done to voters.40

Te CNE statement then reviews various o the claims and concludes: Te annexes o the above mentionedrequest do not constitute evidence whatsoever regarding how the alleged harm to a signicant number o

votes, in a specic number o polling centers and booths, with names and codes, took place. Nor does it state

36.Id.37.Noticia Detallada, CNE (DAE), http://www.cne.gov.ve/web/sala_prensa/noticia_detallada.php?id=3211.38. Se Realizar la Auditoria de Huellas Digitales Una Vez FInalice la Verifcacin Ciudadana, http://albaciudad.org/wp/index.php/2013/06/video-completo-socorro-hernandez-se-realizara-la-auditoria-de-huellas-digitales-una-vez-nalice-la-vericacion-ciudadana/ .39. June 11th CNE Statement.40. April 27th CNE Statement, at 2.


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how any such harm could have altered a result, which each o the candidates obtained in detail rom thisinstitution, so that it could analyze it and compare it with their signed records results which they hold inthose records, and which were transmitted through the data network audited by them beore and ater theelection, and regarding which there were no observations nor any evidence o any errors. Tis is supportedby the act that there is no single record o irregularities in the signed records that were endorsed by all

witnesses.41

Te more ormal legal resolution was approved by the CNE in its April 22 session and published in its gazette

on April 29, 2013.42 Among the additional points expressed in the CNE determination were the ollowing: Te proclamation that declares a candidate the winner o an election is presumed to be legitimate

unless demonstrated through an administrative or legal process to be otherwise;

Since 2004 the Venezuelan electoral system has been totally automated. As such, ballots whichcontain the votes cast by voters do not exist, as the maniestation or intention o the vote iseectuated electronically and is duly registered in the interior systems o memory o the votingmachine, based on which the respective certication o the vote count and electronic transmissiono the results which it contains are generated.43

Ater reviewing the legal basis and scope o the audit process and listing the audits conducted andapproved by political party representatives including MUD, CNE concludes that the purpose othe audits is not only to guarantee the trustworthiness and transparency o the process, but alsothe certication o the knowledge, unctioning and trustworthiness o the automated electoralsystem by the candidates and political organizations in the contest, such that there cannot bea pretext aterwards, in the event o an unsatisactory result to the electoral contenders, o adecient unctioning o the electoral system.44

Te voting rolls or presidential elections contain those Venezuelans who reside in the countryand abroad who are eligible to vote, while only Venezuelans who reside in the country andoreigners with more than ten years o residency are eligible to vote in regional elections.45

Te CNE has no jurisdiction over either the countrys international relations nor national securityor deense, the responsibility or which reside in the National Executive Branch.

On April 30, 2013, Capriles submitted a request or certied copies o all voting books, all ocial documentsregarding the totaling o the vote, the constitution o polling stations, o incidents, o the vote count, o manualcounts, and o citizen verication as well as extensive data and reports concerning the ngerprint machinesand transmission o data.

Te CNE reviewed the request, responding that the Supreme Court has held that the right to inormation isnot without limits and the party soliciting such inormation must expressly state both the reasons or whichit is required or purposes or which it will be used and that the inormation solicited must be proportional tosuch utilization. In addition, the Constitution protects personal privacy, and, as the provision o voting books

would reveal whether a person had voted and personal inormation including ngerprints and signatures, therequest would not be granted. Te CNE went on to clariy that this would not preclude the release upon therequest o a judge in the context o a uture legal case that had been accepted.

Te CNE also claried that in presidential elections there is only one Certicate o otalization, Adjudicationand Proclamation and that it would provide a certied copy o that document. Regarding the request or thecerticates o the automated totals issued by all o the voting machines or where the total was calculated manually,under the law witnesses or each candidate or alliance that has been in the top three places as well as politicalparties that have the six highest numbers o votes in the previous election are entitled to immediate access to such

41.Id. at 4.42. Gaceta Electoral de la Republica Bolivariana de Venezuela, Extraordinary No. 19.43.Id. at 3.44.Id. at 5.45.Id. at 7.


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documents and that they should already be in the possessiono the MUD; however, i any have been lost or damaged,certied copies would be provided upon receipt o a specicrequest. Te requests or certied copies o certicates o theopening o the polling places, voting, incidents and citizen

verication were denied as not susceptible to legal challengebeore the CNE. Additional technical requests remainedunder consideration in order to evaluate the technical andlegal appropriateness o their release.

Seven petitions were led with the Electoral Chambero the Supreme Court o Justice challenging the election.One petition, consisting o three pages, was rejected earlyon: Te only issue o law presented involved the transer tothe voting rolls in New Orleans o Miami residents uponthe closure o the diplomatic headquarters or Venezuelain Miami. Several additional allegations were included, butthere were no supporting annexes or evidence.

Several o the other petitions solicited the recusal o three

o the Supreme Court Justices in the Electoral Chamber,a procedural matter that had to be determined prior toconsideration o the substance o the remaining petitions.

While it is beyond the scope o this report to analyze the petitions in detail, a number o observations maybe useul:

First, the petitions varied greatly in terms o length, tone and presentation. Some were a ew pages, whileothers exceeded one hundred pages and contained extensive attachments. Some were largely political in nature,attacking the CNE and Venezuelan government, while others concentrated on the electoral process especiallythe validity o the electoral registry. Finally, some appeared to present arguments requiring a response andothers were dicult to take very seriously (or example, one requested that the Supreme Court obtain Madurosbirth certicate as his mother and older sisters were born in Colombia and another asked that the October

2012 election be nullied).wo used identical language in making statistical arguments regarding alleged deciencies in the electoralregistry. Similarly, a number o the petitions call into question the reliability o the electronic voting system,especially the validity o the electoral rolls and the use o ngerprint technology. Since technicians or all partiessigned o on extensive audits o all acets o the system,46 and since the CNE has undertaken a massive routineaudit o its ngerprint data, it seems that energy might be better spent on ensuring that any deciencies thatmay exist are brought to the attention o the CNE so that the registry may be as accurate as possible by thetime o the municipal elections in December.

Along these lines, in response to our questions we were pleased to learn rom the CNE o some o the waysin which it continues to improve the trustworthiness o the system. For example, the CNE has recently beengiven the responsibility or maintaining records o vital statistics. As these are integrated with the electoralsystem, we were told that persons who are deceased will automatically be removed, and young people whoturn 18 will be incorporated into the voting rolls. In addition, as noted above, the database o ngerprints iscontinually improved as missing prints are included and prints o poor quality are replaced with prints takendirectly rom the voter.

46. ibisay Lucena strongly deended the integrity o the electoral polls in the CNE June 11 th Statement. In addition, in response to a question we posedto the CNE regarding the regulations regarding voting in the absence o ngerprints or where the ngerprint o the voter diers rom that under his or hername and identity number, we were inormed that the opposition had insisted on inclusion o a provision that voters who did not have ngerprints in thesystem must still be allowed to vote. SeeReglamento General de la Ley Organica de Procesos Electorales, Art. 323 Section 2.4. We were also told that wheresubstitute prints are taken, they must match certain parameters o consistency with the earlier prints or they will not be accepted by the machine.


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Te weightiest Complaint consisting o a92 page petition accompanied by a stack oattachments more than a oot high was ledby the MUD. It contained three challenges: 1)against 5,729 voting stations or violations allegedto have occurred there during the election; 2)against 21,562 certicates o the automated votecount and one certicate o a manual vote count;and 3) against the certicates o the totaled votecount, adjudication and proclamation.

At rst blush the rst set o allegations appearto be serious: including violence, propaganda,usurpation o the identity o voters, etc. Tecompilation o the extensive annexes undoubtedlyrequired great eort. Yet, a cursory review o allo the annexes did not reveal a single adavit,

declaration or even a specic description o a particular violation linking it to a specic time, place and person,let alone describing the impact on the election.

Te second set o claims contain a detailed analysis and additional annexes categorizing the alleged ailure tocomply with electoral requirements such as writing the number o people who actually voted as reected inthe voting book on the tape rom the voting machine that certies the total vote, the ailure o witnesses tosign or place ngerprints on the tape issued by the voting machine, etc. While this section creates an imageo inattention to detail by election ocials, the Supreme Court had previously ruled that the requiremento nullication o the certication o a vote count due to the lack o signatures o a majority o the electionocials is not applicable per se where the certication o the vote count is automated.47

Despite the massive amount o paper, only one claim stands out as documented. In thirty-six polling stations,manual voting occurred, presumably due to the inability to resolve problems encountered with the votingmachines and the need to resort to backup measures. Tis complaint challenges one o those certicationsdue to the allocation o 164 votes to the MUD which apparently belonged to Reina Siquera. Not alleged, butalso apparent is a numerical inconsistency where the total reported is less than what appears on the citizen

verication orm and the certication o the contingency vote count by a dierence at most o twenty votes.While these are obviously valid objections, they are most likely accidental errors that would have been obviatedby the use o electronic totaling by the voting machines themselves and, in any case, would have had no impacton the outcome o this election.

Te nal section makes much o the act that there are apparently three sets o election results: those announcedthe night o the election; those contained in the proclamation (a slightly higher percentage or Maduro); andthose that presently appear on the CNE web site (a slightly lower percentage or Maduro). Yet, even in the lastset o gures, presumably lower due to inclusion o the manual vote rom outside the country, the dierencein the result remains at approximately a quarter o a million votes or 1.49%. While perhaps lacking the orceo the mandate obtained by Chvez due to his much larger margin o victory in the October election, theoutcome here was ar clearer than, or example, the US presidential election in 2000, with 25 electoral votes

at stake and great uncertainty regarding the trustworthiness o the actual vote count due to the existence othe inamous hanging chads (see section 8 below). It is also a wider margin than in many local elections inVenezuela, including some o which were won by opposition candidates.

Our impression regarding the lack o evidence in this case appears to have been conrmed by the decisionrendered by the SJ on August 7, 2013. Citing a ailure to provide sucient proo, Magistrate GladysGutierrez announced that the court had reached a unanimous decision, rejecting the petition and ning theion or what is eectively abuse o process.48

47. Sentencia No 36 de la Sala Elecoral, Expediente No. 05-000094 de echa 09/03/2006.48. See Ryan Mallett-Outtrim, Venezuelas Supreme Court Rules Capriles Appeal Against 14 April Electoral Results Inadmissible (August 8, 2013), http://venezuelanalysis.com/news/9917


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8. The United States should recognize the Maduro administration as the result o asovereign, transparent, and democratic process

At the time o this writing, although the U.S. State Department appears to engage in diplomatic relationswith the Maduro government, the U.S. has withheld ocial recognition o President Maduro and the resultso the election. Immediately ater the election, citing the closeness o the vote, the U.S. openly supported theopposition partys calls or a manual recount and was reticent in giving its stamp o approval, despite the actthat the CNE agreed to an expanded audit o the vote. Meanwhile, 61 dierent countries were at the swearing-in ceremony o Nicolas Maduro, including 8 presidents rom UNASUR and 17 heads o state.49

While the election in Venezuela was a close race, the over 260,000 votes Nicolas Maduro won by is a comortablemargin. Recall that John F. Kennedy beat Richard Nixon in 1960 by only 0.1 percent.50 George W. Bushbecame president in 2000 ater losing the popular vote to Al Gore but winning by only a ew hundred votes inFlorida where a recount was blocked by the U.S. Supreme Court.51

In none o these U.S. elections did any other nation insist upon a recount or hesitate in recognizing thedeclared winner. Had a country like Venezuela done so, the U.S. would have ound such a position absurd. TeUnited States governments reusal to recognize the April 14 Venezuelan election was no less absurd, especiallygiven the electoral commissions agreement to an expanded audit.

Te U.S. governments reusal to recognize the CNEs certication o the Venezuelan election also violatesour own notions o international comity, in which the U.S. should honor the validity and eect o othernations executive, legislative and judicial acts, and not act in a way that demeans the jurisdiction, laws, or

judicial decisions o another jurisdiction.52 Te main rationale o comity is the hope that other jurisdictionswill reciprocate the courtesy shown to them a courtesy the U.S. has relied upon numerous times even in thecase o very close and contested elections.53

Te U.S. position is all the more hypocritical considering that it helped engineer and quickly recognized a coupgovernment in Paraguay last year and approved the results o a 2009 election in Honduras even though theprevious president, ousted by the military, was not allowed to compete.54 Te U.S. governments recent electioninterventions pale in comparison to U.S. involvement in violent coups against democratically elected leaders inLatin America, such as those against Jacobo Arbenz in Guatemala in 1954, Salvador Allende in Chile in 1973and Jean-Bertrand Aristide in Haiti in 2004.55

Te U.S. governments reusal to recognize the April 14 Venezuelan election has had devastating consequencesbecause it emboldened some in the opposition to use violence to destabilize the country. Te opposition burneddown health clinics, attacked Cuban doctors and destroyed ruling-party buildings, presumably believing itselto have the backing o the U.S. government and military.56 As a result, at least seven Venezuelans are dead andnumerous have been injured.57

Al Gore in 2000 stepped aside or George W. Bush in the interest o his country, but Henrique Capriles and

49. See 17 Heads of State or government to attend Maduros swearing-in ceremony: Venezuela FM, (Apr. 20, 2013),http://news.xinhuanet.com/english/world/2013-04/20/c_132324084.htm.

50.Indeed, Kennedy won the presidency by a vote margin of less than 120,000 votes. See Presidential Elections, http://www.history.com/topics/presidential-elections/page4.

51.See Samantha Levine, The Legacy of the Hanging Chads, U.S. News and World Report (Jan. 17, 2008), http://www.usnews.com/news/articles/2008/01/17/the-legacy-of-hanging-chads .52. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).53. Id.54. See Natalia Viana, U.S. Aids Dubious Allies in Paraguay, http://wrongkindofgreen.org/2013/04/13/usaids-dubious-allies-in-paraguay/; DanaFrank, In Honduras, A Mess Made in the U.S., NYTIMES online (Jan. 27, 2012), http://www.nytimes.com/2012/01/27/opinion/in-honduras-a-

mess-helped-by-the-us.html?_r=0.

55.See Sakura Saunders, CIA in South America, Geopolitical Monitor (Oct. 24, 2007), http://www.geopoliticalmonitor.com/us-interventions-in-latin-american-021/; and Paul Farmer, Who Removed Aristide? (Apr. 15, 2004), http://www.lrb.co.uk/v26/n08/paul-farmer/who-removed-

aristide.

56.Paula Newton, Cahterine E. Shoichet, Tensions mount after tight Venezuelan vote, CNN online (Apr. 17, 2013), http://www.cnn.com/2013/04/16/world/americas/venezuela-elections-unrest.

57. Id.


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his backers would rather oster chaos and crisis in an attempt to topple the Maduro government.58 Te sameconservative orces that are supporting Mr. Capriles kidnapped and briey overthrew Mr. Chvez in 2002

with U.S. support. 59

Latin America as a region is a growing concern in U.S. oreign policy. Te April 14 th election was a perectstorm that could have lent itsel to change not only in Venezuela but also in the region.

As a New York imes article printed in March 2013 pointed out, the legacy o Mr. Chvez was not concrete

and steel, highways and houses, but something less tangible: he has changed the way Venezuelans think aboutthemselves and their country. He has made people who didnt eel they were part o democracy beore eel liketheyre part o the system, said Joy Olson, director o the Washington Oce on Latin America, an advocacygroup. Tat hasnt happened in very many countries. I you look at the United States, poor people dont eellike theyre very much a part o the system, and he did that.60

Chvezs legacy however, extends beyond Venezuela. In the region, Chvez provided a charismatic example orother leaders to cement their own political identity. Te political ideologies o Latin America have thereoreshited a great deal over the past decade notably to the let. Te act that the April 14 th election was therst where an opposition candidate would go up against a contender that was not Hugo Chvez, was the rstglimmer o hope or those seeking change in Venezuela and the region. By openly supporting the opposition,the United States showed its hand.

Statements made ater the elections as well by Secretary o State John Kerry, exacerbated the growing tensionand will only serve to solidiy the political will o Latin American countries. On April 17, 2013, during aspeech beore the Foreign Aairs Committee o the House o Representatives and ollowing the MonroeDoctrine, John Kerry stated:

Te Western Hemisphere is our back yard (sic), it is o vital importance to us. oo oten, manycountries in the western hemisphere eel that the United States does not give them enoughattention and sometimes that is probably true. We need to be closer and we plan to do it. TePresident will travel soon to Mexico and then to the south, I cannot remember which countries,but he will go to the region.61

A good starting point or improving U.S.-Latin American relations would be to respect the sovereignty oother nations. By recognizing the validity o the Venezuelan electoral system and the results o the April14th, 2013 election, the United States would take a step orward in indicating it views the countries o LatinAmerica as more than a backyard. A basic principle in international law is state sovereignty, connected to astates ability to guarantee and act on behal o the best interests o its own citizens.62 As such, while Venezuela,like any other sovereign country, does not need the ormal recognition o another, 63 the reality is that in theincreasingly connected, globalized world, recognizing the results o a widely-recognized, democratic process isa matter o international courtesy.

58.SeeAVN, Rightwing Covering up Coup Plan with So-Called Electoral Struggle, Argues Opposition Deector, (May 7, 2013), http://venezuelanalysis.com/

analysis/9125.59.SeeJonathan Watts and Virginia Lopez, Henrique Capriles, Te Man rying to opple Chavez, Te Guardian (Oct. 3, 2012), http://www.guardian.co.uk/world/2012/oct/03/henrique-capriles-topple-hugo-chavez; and Our Man in Caracas: Te U.S. Media & Henrique Capriles, (June 18, 2012), https://nacla.org/blog/2012/6/18/our-man-caracas-us-media-and-henrique-capriles .60. William Neuman, Chvez ransormed the Way Venezuelans View Temselves, Te New York imes (Mar. 6, 2013), http://www.nytimes.com/2013/03/07/world/americas/or-good-or-ill-chavez-altered-how-venezuela-views-itsel.html?pagewanted=all&_r=0.61. Lisa Karpova,John Kerry, Secretary o State: Latin America is our back yard,Pravada.ru (Apr. 23, 2013), http://english.pravda.ru/world/americas/23-04-2013/124377-latam_backyard-0/.62. C.G. Bateman,Nicaea and Sovereignty: Constantines Council o Nicaea as an Important Crossroad in the Development o European State Sovereignty, 54-91(University o British Columbia).63. SeeArt. 3, Montevideo Convention: Even beore recognition the state has the right to deend its integrity and independence, to provide or itsconservation and prosperity, and consequently to organize itsel as it sees t, to legislate upon its interests, administer its services, and to dene the jurisdictionand competence o its courts.


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Conclusions and Recommendations

Te NLG delegation makes the ollowing ndings ollowing the April 14, 2013 election and expanded audit:

Te election process observed by the NLG delegation on April 14, 2013, was air, transparent,participatory, and well-organized;

Private media coverage in Venezuela leading up to the elections avored opposition candidateCapriles, where privately owned and paid television stations constitute between 90 to 94 percento viewership in Venezuela64;

Given the security procedures embedded in the electoral process, there was no reason to expectthat an expanded audit will produce a result that diered rom the random audit o 54 percent othe votes conducted immediately ollowing the closing o the voting stations;

Despite recognition by virtually all Latin American countries, including Colombia, Mexicoand Chile, the United States continues to isolate itsel by ailing to armatively recognize theoutcome o the election, by ailing to send any high level representatives to the swearing inceremony o President Nicols Maduro, by reerring to Latin America as the back yard o theUS, and by threatening Venezuela with repercussions should it grant asylum to Edward Snowden.

Members o our delegation who returned to Venezuela in May to accompany the audit process were pleased

to nd that the atmosphere was ar less politically charged than what we had experienced ollowing the April2013 election. Te end o our stay in early June coincided with the announcement o municipal elections nextDecember. We noted that the opposition quickly responded by announcing that it intended to participate inand win those elections, thus implicitly validating the electoral process.

While accompanying the last two presidential elections, our organization has ound the electoral process inVenezuela to be impressive both or its eorts to ensure the enranchisement o all eligible voters and becauseit continues to strive to be a trustworthy vehicle or the exercise o real democracy. Tis does not mean thatit is a perect system; no system could meet such a standard. But it is being perected with the experience oeach election due to the contributions by Venezuelas political parties, the recommendations o national andinternational observers and the CNE and its sta.

Moreover, while some o the saeguards in place in the Venezuelan system would be dicult to implement in

the United States, we would do well to incorporate a number o eatures o Venezuelas electoral system: Elections are held on Sundays to make it easier or working people to vote;

A major outreach eort has resulted in a dramatic increase in voter registration. Given the recentdecision by the Supreme Court undercutting the Voting Rights Act65 and legislation in a varietyo states designed to discourage the registration o low income voters and people o color, theUnited States would do well to emulate Venezuelas approach to voter registration;

Sophisticated technology and multiple audits that involve political parties and independentnational observation organizations are used to eliminate any possibility o raud or manipulationo electronic data;

All voting machines issue a paper receipt that can be viewed by the voter to conrm that his or

her vote has been properly registered; Ater the polls close, 54% o those boxes and paper receipts are manually counted as a routine

procedure in the presence o representatives o all parties. Tis Citizens Audit process ensures thatthe results o the nal print-out rom the voting machines match the votes cast as reected by thepaper receipts in the sealed ballot box;

Increased condence in the electoral system and eorts to involve the public in the electoralsystem, lead to increased political participation.

64. CEPR 2010 Media Report.65. Shelby County v Holder (2013) 570 US ___, 1313 S. Ct. 2612


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Finally, as citizens o the United States, we would be highly remiss i we did not conclude this report with anunequivocal declaration that we believe that the Venezuelan electoral system is trustworthy, transparent andthat the pride expressed to us by Venezuelans o all political parties in their electoral process is well deserved.

We have observed the CNE and its sta closely and have ound them to be highly competent and committedto urthering the development o democracy in Venezuela, avoiding the reality as well as the appearance o bias,and shying away rom any conversations that might imply political bias.

In our view they have a major responsibility and have handled it very well. While thorny issues regardingtransparency in election unding and the use o state resources remain to be tackled, we conclude that the April

2013 election was hard-ought but undamentally air. We call upon our government to recognize the resultsand work towards normalizing the relationship with the new government o Venezuela. Joining the rest o theworld in recognizing the government o democratically elected President Maduro is important both as a gestureo respect or an exemplary electoral system, and an important step in moving our relationship with Venezuelain a more productive direction. By ailing to do so, the Obama Administration is urther isolating the UnitedStates rom our Latin American neighbors and generating suspicion regarding our actions and intentions. NLGDelegates to 2013 Election and Audit Delegations

NLG Delegates to 2013 Election and Audit Delegations

Robin Alexander, Director o Intl. Aairs, United Electrical, Radio & Machine Workers o America (UE), Pittsburgh, PAAudrey Bomsey, NLG Free Palestine Subcommittee CoChair and human rights lawyer, Miami, FLDan Kovalik, labor lawyer and proessor o international human rights law, Pittsburgh, PANicole Phillips, human rights attorney, Institute or Justice & Democracy in Haiti, San Francisco, CA, and Port-au-Prince, HaitiCamilo Romero, National Vice President o National Lawyers Guild, Legal Director HomeBoys Industries, Los Angeles, CANatali Segovia, law student, Sandra Day OConnor College o Law, Arizona State University, Phoenix, AZRetu SIngla, Asst Legal Director, TWU Local 100, New York, NY

Report of the National Lawyers Guild Delegation on the April 14, 2013 Presidential Election and...

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