Amidst a pandemic, whose trajectory and future impacts on the country remain unknown, the Congress of the Republic is urgently debating a reform to the current Electoral Code through a statutory law project. This proposal has already passed the first of four required debates during this legislative session before being reviewed by the Constitutional Court and enacted by President Iván Duque, who, through an urgent message, ordered this discussion to be prioritized in Congress.
Shielded by the modernization of the electoral process, the president of Colombia, Iván Duque, has reiterated that the country's Electoral Code requires a guarantor technological transition, with elements that reconcile it in technological matters and allow Colombians to have a legal structure. And, although he acknowledged that the proposal submitted to Congress is not the same as the one initially presented, he assures that it has been further enriched. Duque does not contemplate, under any circumstances, shelving the project.
Alexander Vega, the national registrar of Colombia and co-author of the legislative initiative, has stated that the reform does not aim to create positions, but rather to incorporate supernumeraries and professionalize the staff of the Registry. The rules contemplated in the current Electoral Code predate the Constitution itself, and their updating has been a long-standing aspiration of democrats in Colombia
A flurry of opinions has arisen regarding this bill, especially due to the haste with which its approval is being suggested. Former Vice President of Colombia, Germán Vargas Lleras, stated a couple of days ago that this reform does not guarantee the freedom and transparency of electoral processes in the country.
“Everything relevant remains in the hands of the national government, which is granted extraordinary powers. It is a disgrace that Congress is delegating this legislative responsibility, which will extend to staffing to create, modify, and reclassify jobs, implement salary increases, and create various funds, such as the Revolving Fund of the National Electoral Council, when one already exists within the Registrar's Office. Likewise, the bill warns that in the coming years, the government will be obligated to include in the budget all resources that the registrar deems necessary to carry out their duties, and Congress will not be able to discuss or reduce them (Art. 262).
As we already mentioned on another occasion, the electoral contests in the country would have profound changes, among which the following stand out:
- The election day would run from eight in the morning to five in the afternoon (it would be extended by one more hour).
- The manual and in-person voting that we know today remains. However, the new code contemplates a biometric system at all polling stations, the jurors would digitally fill out the records (today they do it manually) and would put their digital signature.
- The figure of mixed voting is one of the novelties brought by the project. This model involves attending polling stations and casting a vote on a machine. The latter prints a ballot with the vote that the voter must deposit in the ballot box.
- Early voting, which generally involves voting before Election Day in front of public notaries.
Another opponent of the proposed reform to the Electoral Code is the Attorney General, Fernando Carrillo, who asserts that the country deserves an electoral code that meets the real needs of Colombian parties and politics. “There are many concerns of a constitutional nature, of convenience, and many that will unfortunately open the door to fraud.”.
The last Electoral Code in Colombia was updated more than 30 years ago. It is undeniable that electoral processes must be updated, modernized, and adapted to the new and different realities of Colombia. However, what many actors in the country are questioning are the timing and context in which a proposal is being sought for approval, a proposal that is still perceived as having inconsistencies and requires in-depth analysis, a budget for its implementation, and rhetorical and practical coherence.
Furthermore, the decision to reform the electoral process so profoundly implies a massive educational effort, as the actors involved in the proposed voting modalities are multiple: voters, jurors, witnesses, poll workers, National Registry delegates, notaries, systems engineers, etc. If several of these changes are implemented in 2022, as the Registrar pointed out at the time, the time to educate the urban and rural population of Colombia on new technologies is very limited.
One of the elements of greatest concern in this reform is what is incorporated as regulation to confront hate speech. Article 107 of the reform makes an attempt to address “political violence,” but it creates a small Frankenstein, as it does not specify who can perpetrate “violence”: will it be the candidates, the voters, or the militants and supporters of candidates for popular election?
In this vein, politicians could use this concept to try to censor political opponents or the general public by labeling criticism (including organic content on social media) as «political violence.» This could lead to the National Electoral Council issuing requests to remove organic content from social media that is clearly protected political speech (e.g., a negative comment about a candidate posted by a voting-age citizen on this FB page).
Besides how sensitive this topic is, how important it is, and the consequences of either direction, prohibiting this type of content could be unconstitutional. It is clearly an undue restriction of the right to freedom of expression. The Constitutional Court has held that provisions seeking to restrict political propaganda that alludes to or transmits negative messages referring to other candidates are unconstitutional. In this line of reasoning, Article 107 could be unconstitutional for violating the Constitutional Court's jurisprudence regarding special protection for freedom of expression concerning «political discourse, debate on matters of public interest, and opinion on public officials and figures.».
Balancing a new Electoral Code must be the premise of the proponents and, of course, the government, but it must also be a priority for civil society; for voters as primary constituents, for all of us who believe in democracy as an institution. Therefore, we must defend it and defend the fact that networks, voting, and freedom of expression are paramount elements of modern democracies.