Election of Members to the Parliament – District of Europe
District of Europe voters
Election of Members to the Parliament
15th February 2022
Subject: Decision on the deliberation of the Assembly of the Electoral District of Europe within the scope of the election of Members to the Parliament, held on January 30th.
The plenary of the Court unanimously decided to:
a) Revoke the deliberation of the General Assembly of the District of Europe, insofar as it declares the nullity of all votes in the polling stations of the constituency of Europe in which there was confusion between votes sent to the electoral administration duly accompanied by a photocopy of the identification document of the voter and votes with respect to which this was not the case.
b) Declare the nullity of the election in the polling stations of the constituency of Europe referred to in the previous point.
c) Order the repetition of the electoral acts in the corresponding polling stations, under the terms of article 119 (2), of LEAR.
d) Regarding the other matters, dismiss the appeal.
e) Determine the immediate communication of this decision to the National Elections Commission.
Judgment No. 133/2022
Judgment Nº. 133/2022 was handed down by the Plenary of the Constitutional Court, which considered the s appeal by the VOLT PORTUGAL (VP) party, against a deliberation of the General Assembly of the Electoral District of Europe within the framework of the legislative elections of January 30, 2022. This decision, taken following a protest presented by the SOCIAL DEMOCRAT PARTY (PPD/PSD), declared the nullity of votes in one hundred and fifty-one polling stations in the constituency, as the envelopes with the ballot papers were not accompanied by a photocopy of the voter's identification document. The appellant asked the Constitutional Court to revoke that decision and, consequently, to validate all the ballot papers.
The Constitutional Court considered that votes sent by post whose envelopes were not accompanied by a photocopy of the voter's identification document inserted inside the white envelope, in accordance with the provisions of article 79-G, no. Law n.º 14/79, of 16 May, as amended by Organic Law n.º 4/2020, of 11 November (Electoral Law for the Assembly of the Republic, hereinafter referred to as “LEAR”), shall be considered void, under the terms of article 98 (4), of LEAR.
It also found that, as a result of the adoption of anomalous procedures in the operations of counting votes in about one hundred and fifty polling stations, such ballot papers – in an unknown number – were inserted in a ballot box, together with ballot papers whose envelopes had been accompanied by a photocopy of the voter's identification document, which made it impossible to distinguish one from the other.
Due to the impossibility of such segregation between invalid and valid votes, the General Assembly of the District of Europe decided to consider all votes of the sections in which such anomalous procedures had been adopted null and void, which resulted in the declaration of nullity of more than 150,000 (one hundred and fifty thousand) votes, without it being possible to determine, within this universe, the proportion of effectively valid votes and their distribution among the parties that competed in the elections.
In view of the large disproportion between the volume of votes declared null and void and those which were effectively counted, the Court deemed it perfectly possible that the decision to declare null and void the votes in the universe in which there had been confusion between valid and invalid votes influenced the overall result of the election in the constituency, as measured by the distribution of seats.
The contested decision invalidated votes that should have been counted. Since it was impossible to effectively count all and only the votes that must be considered valid, the Constitutional Court ordered the repetition of the electoral acts in such polling stations, as provided for in article 119 (2), of LEAR.
Finally, the Court stressed that, under the terms of article 223(1)(c) of the Constitution, the Constitutional Court must “judge as a last resort the regularity and validity of electoral procedures, under the terms of the law", and that the resources provided for in the electoral legislation have an objectivist vocation, not primarily aimed at safeguarding the particular interests of the appellants, but at guaranteeing the legality and integrity of the electoral acts, on which the democratic legitimacy of political power ultimately depends. It is this fundamental public interest which explains the wide range of persons or entities with active procedural legitimacy to file an appeal, in the cases of article 117(2), of LEAR.
The full text of Judgment Nº. 133/2022 can be found, in Portuguese, here.