‘The Most Complex Elections’ Since the Signing of the Peace Accords

What is behind the controversy in El Salvador's recent elections?

May 7, 2015

A voter casting their ballot in El Salvador’s 2009 presidential elections (Amber / Creative Commons)

It is already past midnight in Nejapa, El Salvador. Poll workers at the Jose Matías Delgado School voting center, exhausted after having arrived at 5 am, are still arguing over how to fill out the new count sheets introduced for this year’s electoral process. Scenes just like this were repeated all across El Salvador during the March 1st elections.  

Salvadorans took to the polls in relative calm to cast their ballot for mayors, National Legislative Assembly representatives and Central American Parliament (PARLACEN) legislators. Delayed openings, allegations of vote buying in rural areas and isolated confrontations between voters or poll staff did little to impede the active exercise of suffrage throughout the country. The process was declared broadly transparent by visiting international observation delegations, including that of the Organization of American States (OAS).

So why did it take almost a month to get elections results in a system that has been lauded as one of the most democratic and transparent in the region? The answer partly lies in the interventionist role played by the nation’s Supreme Court.

The road to the elections and the Supreme Court’s controversial rulings

As the Farabundo Martí Liberation Front (FMLN) has consolidated its legislative and executive power, the Constitutional Chamber of the country’s Supreme Court has demonstrated growing loyalty to El Salvador’s political right. They have issued increasingly controversial rulings to undercut elections and curtail legislative decisions.

In 2013, the Constitutional Chamber ruled that the election of Salomon Padilla, head magistrate of both the Court and the Chamber, was unconstitutional because he belonged to the FMLN. A year later, the Chamber ruled the same way in the case of Eugenio Chicas, then-president of the Supreme Electoral Tribunal (TSE) and a member of the FMLN’s Political Commission. In both cases, the Court claimed that party membership compromised performance and determined that people with party affiliations could no longer be elected to the TSE or any other national courts. For two decades, court officials routinely had maintained strong political party affiliations, making both of the Court’s rulings most likely politically motivated, as they came when the FMLN is governing and months before elections were held.

Before the 2015 elections, the Chamber had transformed the country’s electoral system.  Ever since the signing of the 1992 peace accords, El Salvador has had a multi-party system with a very polarized left-right divide. This arrangement was rarely questioned by the right-wing National Republican Alliance party (ARENA) until it lost the elections in 2009. Ever since, the Salvadoran right has pushed for electoral reforms, some of which have gained approval by the Supreme Court.

In 2012, the Court mandated that the country replace its closed list of candidates with an open one, and then allowed independent candidates to run for the first time. However, the most controversial ruling was made just three months before the elections on November 5th 2014. It permitted the cross-party vote. Salvadorans had previously voted for their preferred party by simply marking a party’s flag, given that only the parties’ logos, and not individual candidates, appeared on the ballots.

The new cross-party vote allows voters to select individual candidates from any party rather than just vote for a single party with an established candidate list. Proponents argued that the ability to vote for individual candidates is a basic right, and would contribute to political pluralism. Felix Ulloa, a jurist who was part of the lawsuit requesting the cross-party vote, said the decision “is a win-win situation. Citizens take back their freedom, elected officials will have the support of the people, and everyone wins with the plurality of opinions.” The ruling came after the Supreme Electoral Tribunal had already officially convened the elections, creating, according to the OAS delegation, administrative chaos and delays that reverberated through to the final count.

Right-wing candidates ran more individualized campaigns with independent financing, uncoordinated from other candidates from their same party. In contrast, the FMLN chose a strategy of calling on its supporters to simply vote for the party’s flag as a symbol of the political platform, and ran a unified campaign.

After the controversial November ruling, the magistrates declared they would make no more electoral decisions with regards to the March 1st vote. But just nine days before Election Day, the Constitutional Chamber released a statement saying that even though voters could still opt for one party, votes for party flags would not be counted as preferential votes for the party’s ranked list of candidates. The unprecedented measure appeared directed at the FMLN, given that the Frente was the only party that asked its voters to mark its flag. It also succeeded in confusing voters into thinking that marking a party’s flag was no longer a valid way to vote, a misunderstanding that was trumpeted across El Salvador’s conservative-dominated mass media in the run-up to the election.

In the end, the Court’s last minute electoral decisions not only introduced enormous complexity into the electoral process, they appear to have been designed to delay and complicate the election in order to sway the results.  Abraham Ábrego, president of El Salvador’s Foundation for the Study and Application of Law (FESPAD), argues that the path to preventing a repetition of this scenario involves “a serious evaluation (of the current electoral system) and a push to remove party influence from the TSE.”

The aftermath

Ever since ARENA lost the presidency in 2009, the right-wing party has played a belligerent oppositional role by stalling and sometimes blocking government initiatives in the National Assembly. In 2014, when former guerilla commander Salvador Sánchez Cerén was elected president in what was roundly deemed the most transparent election in the country’s history, ARENA contested the outcome and went as far as to ask the Salvadoran Military to intervene in what they described as a fraudulent election.

The final count for the 2015 elections was scheduled to start on March 3rd, and take about 10 days. However, the TSE did not announce the final official results until 27 days after the elections. This created a lot of uncertainty and confusion, a situation that ARENA and other parties from the opposition attempted to exploit.

The new voting rules established an incredibly complex counting system. Legislative seats are now assigned based on the number of votes a party receives but filled based on the voters’ preference for candidates. Since the ruling was made so late, the necessary financial, logistical and operating adjustments could not be made. Nor could adequate training be provided to poll workers responsible for the preliminary ballot count. As a result, most of the vote count was not finalized until early Monday March 2nd, with exhausted poll workers struggling with the unwieldy new system over the course of some 24 hours. The delay contributed to the atmosphere of unease that the Court rulings had created.

Late on Sunday night the TSE announced that technical difficulties had impeded the posting of the preliminary results on the Tribunal’s website. TSE President Julio Olivo claimed that the difficulties were the result of deliberate sabotage, and the Attorney General’s Office is currently conducting an investigation.

What do the results mean for El Salvador?

The March 1st elections showcased the historical tensions between the two conflicting political projects and visions of socioeconomic development present in every election since the end of the bloody civil war that ravaged the country from 1980 to 1992. The current administration has sought to continue the progressive agenda established under the first FMLN administration with increased social investment directed at historically abandoned and excluded sectors. The March election results thus have great bearing on whether the government will be able to advance its political agenda in the face of a recalcitrant right-wing opposition.

From the beginning, it seemed unlikely that either of the country’s two major parties were going to achieve the 43-seat simple majority in the National Assembly required to pass or reform any laws.  After the dust had settled, Arena had 35 seats (including three won in coalition with the National Coalition Party- PCN), up from its current 28, while the FMLN retained the 31 seats won in the last legislative elections.  The Grand National Alliance party (GANA) won 11 seats, the PCN four, and the Christian Democratic Party (PDC) obtained one. A coalition between PCN and Salvadoran Democracy party (DS) won one seat, while the remaining seat went to the PCN-PDC coalition. ARENA grew primarily by eating up the votes of smaller right-wing parties, and won back seats it had lost when five deputies defected from the party after the 2012 elections.

As a result of the Constitutional Chamber’s ruling, PARLACEN representatives were elected by direct vote for the first time in Salvadoran history. The FMLN and ARENA each won eight seats.

In municipal councils, ARENA won 132 mayorships versus the 85 obtained by the FMLN. Even though the number of local governments in control of the FMLN dropped by ten, the left-wing party scored major victories in four of the five most populous cities: San Salvador, Soyapango, Mejicanos and San Miguel, while losing Santa Ana to ARENA.

The FMLN loss of municipalities is attributed in part to the massive media campaigns against the government by ARENA and the right, especially around the issues of violence and security. In addition, the FMLN’s selection of mayoral candidates may not have reflected grassroots interests and concerns. Another element that likely favored the right is that Salvadorans were arguably suffering general electoral fatigue as presidential elections were held just last year.

The introduction of pluralist city councils, one of the few uncontested changes in new voting rules, guarantees that losing parties get proportional representation in city council seats. In the past the winning party filled all the seats on the city council. This change contributes to greater representation, transparency, and accountability within the councils.

In the municipality of San Salvador, which had been in the hands of ARENA for the previous two terms, the FMLN’s candidate, charismatic businessman-turned-politician Nayib Bukele, won by 48.47% of the votes versus the 46.49% obtained by his closest rival, former Assembly representative Edwin Zamora. In San Miguel, the FMLN’s victory brought an end to the dynastic rule of Will Salgado, a notorious political party-hopper who had served as mayor of the municipality for the past 15 years. The San Salvador suburb of Santa Tecla was won by Roberto D’Aubuisson, Jr., the son of the founder of ARENA who was the notorious leader of the death squads and considered by the 1993 UN Truth Commission to be the intellectual author of Archbishop Oscar Romero’s 1980 assassination.

The March 1st vote has done little to change the balance of power in El Salvador. Although the results prove that the FMLN is still the principal political force in El Salvador, ARENA was awarded major legislative gains. Given that the new legislature will be responsible for selecting one third of the country’s Supreme Court judges as well as appointing a new Attorney General, securing the majority in every decision will be crucial for the electoral future of both parties. Since neither of the two blocks will control the legislature, both will be forced to build alliances with the smaller parties to push their agendas forward.

El Salvador’s electoral democracy has made enormous gains in recent years. But increasing politically-motivated Supreme Court interventions threaten the nation’s democratic institutions. Unfortunately, it does not seem like these interventions will stop anytime soon. On April 28, in a move that was described by Sigfrido Reyes, current head of the Salvadoran Congress, as a technical coup d’état against the March elections, the Supreme Court, ruled that the investiture of 24 elected legislators would be temporarily halted. This ruling was made after the Supreme Court accepted appeals from losing candidates from the PCN, GANA, PDC and CD parties to contest the results.

The Salvadoran electorate demonstrated its civic commitment on election day, with poll workers making heroic efforts to ensure a transparent process despite the cumbersome last-minute changes. In the face of a massive destabilization campaign carried out by the right-wing opposition, the election results had been certified, and the parties were preparing to return to the difficult task of governing until the most recent ruling of the Supreme Court complicated the situation once again.

Despite all the circumstances surrounding the elections and whatever occurs in the aftermath, the majority of the electorate showed signs of maturity and trust in electoral institutions, a promising sign for the future.  As President Sánchez Cerén stated: “We have to learn from the Salvadoran people. They have showed that they believe in democracy, that they do not want to return to the times of conflict."

Angeles Rodríguez-Domínguez is a Mexican writer, journalist and activist based in Mexico City. She holds a M.A. in Latin American Studies from UC Berkeley and travels regularly to Central and South America to report on current regional topics. She joined CISPES' electoral observation delegation for the March 1st elections in El Salvador.


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