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Commentary: Venice Commission on annulled Romanian elections

The Venice Commission finished a report regarding the conditions and legal standards that could permit a constitutional court to invalidate elections

Stefan-Lucian Deleanu

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This article was initially written in English and is automatically processed in all supported languages.

In the aftermath of Romania's Constitutional Court's stunning decision to annul the first round of the 2024 presidential election, the European Commission for Democracy through Law, colloquially known as the Venice Commission, issued an urgent report grappling with the democratic implications.

The report, though refraining from direct condemnation, raises poignant concerns about the Court's reasoning and procedures. By examining the Romanian saga through the lens of the Venice Commission's analysis, it becomes clear that the Court's remedy, while responding to legitimate anxieties, may have exceeded the scope of prudent judicial intervention.

This article will dissect the Commission's advice, probe its subtle critiques, and situate its recommendations within the broader context of the Romanian crisis and the Commission's prior guidance on election disputes.

Disclaimers

This article will include commentary

The commentary represents my own opinion (see Bio), and not the opinion of the redaction or of the Venice Comission.

Council of Europe's own Disclaimer

The Council of Europe’sVenice Commissionhas published an urgentreportonconditions and legal standards whereby a constitutional court could invalidate elections, responding to a request last month from Theodoros Rousopoulos, President of the Parliamentary Assembly of the Council of Europe (PACE).

While the report draws on features from a recent case in Romania – concerning invalidating electionsex officio, digital technologies in electoral campaigns, and external influence by another State – it is not for the Venice Commission to go into the facts of the Romanian case, or into the examination of the decision by the Romanian Constitutional Court.

The question put to the Venice Commission is of a general nature and refers to an analysis of general comparative constitutional law and European and international standards.

The Romanian Constitutional Crisis

To appreciate the gravity of the Venice Commission's report, one must first understand the tumultuous situation it addresses:

In the first round of Romania's 2024 presidential election on November 24, upstart candidate Călin Georgescu shocked the nation by amassing over 2.1 million votes and catapulting into a runoff against pro-European Union contender Elena-Valerica Lasconi.

Georgescu's meteoric rise and retrograde rhetoric, reminiscent of the fascist Legionnaire movement of the 1930s, set off Klaxons across Romania's political spectrum.

The tremors turned seismic on December 4, when Romanian intelligence agencies declassified explosive reports pointing to a coordinated online influence offensive backing Georgescu. The dossiers depicted a sophisticated operation, marshaling an army of TikTok influencers, troll farms, and AI-generated content to artificially amplify Georgescu's message and evade campaign finance strictures.

Even more ominous were cyberattacks on Romania's digital election infrastructure, emanating from a web of foreign servers and suggesting the hidden hand of external powers.

Amid this maelstrom, a defeated candidate, Cristian-Vasile Terheș, petitioned the Constitutional Court on November 26 to annul the election. The Court initially demurred, ordering a recount on November 28 that largely validated the tally.

Then, on December 2, the Court took the step of invalidating the entire election, not based on proven ballot manipulation, but on the freshly disclosed intelligence briefs.

The Court invoked its prerogative to ensure observance of electoral procedures and averred that the reports revealed a "distortion of equal opportunities" via "non-transparent use of digital technologies and artificial intelligence (AI)" and "financing of the electoral campaign from undeclared sources."

This judicial decisionn, though framed as a defense of democratic hygiene, ignited fierce debate. Critics blasted the Court for overreach, arguing that the "evidence" fell short of demonstrating either foreign control of the election or a definitive impact on the outcome.

They decried the reliance on partially redacted intelligence as corrosive to transparency, and showed errors in the initial report, such as the fact that ruling and pro-decision party PNL actually financed the electoral campaign of Georgescu to reduce the chances of George Simion winning the election.

Others warned the Court had opened Pandora's box by making clandestine reports admissible to overturn the people's vote. More cynical voices suspected a "deep state" ploy to kneecap an outsider.

Supporters, conversely, praised the Court for boldly confronting the peril of foreign electoral subversion in the digital age. They argued that the scale and sophistication of the influence campaign spoke for itself, even absent a smoking gun.

Better to rerun the election, they held, than to risk installing a Kremlin-compromised president. The opacity of social media manipulation, they averred, required granting the Court a freer hand to connect the dots.

As the polity processed this polarizing verdict, all eyes turned to the Venice Commission for an authoritative analysis of the Court's logic and legality. The Commission's report, though studiously neutral in tone, offers a revealing appraisal of the propriety and proportion of the Court's response.

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For an objective and comprehensive article on the entire story of the annulment, read the article below.
Coup in Romania - Fact or Fiction?
The presidential elections of 2024 have taken place against a backdrop of social frustration, dissatisfaction with the political class, and their decisions. In this article, we will analyze what led to the Constitutional Court's decision to annul the election and what we have learned so far.

The Venice Commission's Appraisal

The Venice Commission, a body of constitutional experts that advises the Council of Europe, has significant experience in assessing election disputes.

Its 2009 Report on the Cancellation of Election Results and 2020 Report on Election Dispute Resolution provide guidance for addressing such issues within the framework of the rule of law and democratic legitimacy.

The Commission's recent report on the Romanian situation, while initiated by a request from the Parliamentary Assembly for general guidance, inevitably serves as an assessment of the Romanian Constitutional Court's decision.

A thorough analysis of the report reveals the Commission's reservations about the Court's methodology and conclusions.

The Commission's language, while diplomatic, conveys a sense of concern. By emphasizing the exceptional nature of election annulments, the high evidentiary standards they require, and the need for rigorous procedural adherence, the Commission suggests that the Romanian Court's approach may not have met these standards.

Annulling an election is not to be done lightly

The report begins by highlighting the significance of annulling an election, stating that it is a substantial event in the life of a democratic State. The Commission's choice of the term "annulment" over "cancellation" underscores the gravity of the Romanian Court's decision and its potential impact on the democratic process.

The Commission then emphasizes a fundamental principle: voters must trust that their vote is final, and the cancellation of elections, in whole or in part, is justified only in very exceptional circumstances (the ultima ratio principle).

This statement suggests that the Romanian Court's decision could potentially undermine public confidence in the electoral process. The invocation of the "ultima ratio principle" implies that the Court may have resorted to a drastic measure without first exhausting alternative remedies.

Evidentiary standards were lacking

Regarding evidentiary standards, the Commission cites the Code of Good Practice in Electoral Matters, which states that the appeal body must have the authority to annul elections where irregularities may have affected the outcome.

However, the Commission clarifies that this criterion necessitates a concrete demonstration of significant irregularities that have distorted election results, rather than mere speculation.

The Commission also advises against excessive reliance on confidential evidence, stating that decisions should clearly specify the violations and evidence and not be based solely on classified intelligence, which should only serve as contextual information to ensure transparency and verifiability.

This statement could be interpreted as a critique of the Romanian Court's heavy reliance on partially redacted security reports as decisive evidence.

The Ex-Officio nullification is concerning

Another point of concern for the Commission is the Romanian Court's ex officio nullification of the election, without a formal complaint alleging violations that could have altered the outcome.

While acknowledging that international standards do not prohibit such actions by constitutional courts, the Commission emphasizes that this "exceptional" unilateral power should be "clearly regulated to preserve voters' confidence in the legitimacy of elections."

Procedural Fairness is needed

The Commission also stresses the importance of procedural fairness, emphasizing that affected parties must have a meaningful right to be heard, even in expedited election disputes. The repeated emphasis on transparency and the mild criticism of excessive secrecy suggest concerns about the Romanian Court's procedures.

Notably, the Commission cautions that "the consequences of the invalidation of the election results must be less harmful than the acceptance of the election results despite their deficiencies."

This principle, reflecting the "principle of minimum interference" developed by the German Federal Constitutional Court, stipulates that an entire election should only be declared void if the electoral errors are so significant that maintaining the allocation of seats in Parliament appears untenable.

When applied to the Romanian context, this principle raises questions about the proportionality of the Court's decision.

While the intelligence reports indicated foreign interference and platform manipulation, the absence of conclusive evidence demonstrating that these actions definitively altered the outcome casts doubt on whether the extreme measure of annulment was less detrimental than the alleged harm of accepting the results.

Online propaganda is risky but not forbidden

The Venice Commission acknowledges the genuine risks of digital age interference and commends the Romanian Court for addressing the new challenges related to campaign propaganda, disinformation, campaign messaging, and the rules on campaign finance and transparency.

However, the Commission carefully differentiates between distasteful speech and financial misconduct.

It highlights that political statements made during campaigning are typically value judgments or expressions that are protected under the candidate's freedom of expression, unless they exceed permissible limits, such as hate speech directed at political opponents.

This distinction suggests that the Commission is cautioning against the idea that aggressive online rhetoric, even if misleading or inflammatory, typically does not constitute grounds for nullifying an election.

While financial irregularities are a more serious concern, the Commission emphasizes the necessity of establishing a clear link between the violation and its impact on the election outcome.