Was Bush v. Gore a human rights case?

• Author: Neuman, Gerald L.

In a contested election, the state's highest court unexpectedly concludes, in light of the principles of its own constitution, that the officially certified result should be set aside and recalculated because it employed a restrictive method that impaired the counting of every vote. The initial winner moves the case to an even higher authority, which rules that the state court's decision itself violated the electorate's right to vote. It expresses concern that the state court violated equality by creating a situation in which votes are counted by different rules in different subjurisdictions of the state.

Sounds familiar? But this time the context was not the millennial presidential election in the United States. It was the Greek parliamentary election of 2004, and the second decision was a ruling by the European Court of Human Rights, finding that Greece's highest court had violated the international human rights of the disappointed candidates. The judgment in Paschalidis v. Greece (1) affords a number of interesting perspectives on Bush v. Gore, (2) and on the brave new world of transnational adjudication of election disputes.

1. WHAT HAPPENED IN ATHENS

   The 2004 parliamentary election in Greece resulted in an important shift from a government of the left to a government of the right. After eleven years of rule, the Pan Hellenic Socialistic Movement (PASOK) lost power to the New Democracy party (ND), led by Kostas Karamanlis, the nephew of party founder and former President Konstantinos Karamanlis. (3) ND won a solid majority, and the electoral litigation was not crucial to making Karamanlis Prime Minister--in that respect, there was no similarity to the U.S. election of 2000.

   Greece elects its parliament through a complicated scheme of proportional representation. (4) The system seeks stability by awarding a premium of seats to the plurality party, and it also reinforces the strength of small parties that exceed the minimum threshold. For the 2004 election, allocation of seats to candidates on party lists proceeded in three stages. At the first stage, seats were distributed within multimember electoral districts by calculating an "electoral quotient" equal to the total number of votes divided by the number of seats for the district plus one. At this stage, each party received as many seats as the integral number of times its own vote score exceeded the electoral quotient. (Thus, if the electoral quotient were 20,000, and the party won 45,000 votes, it would receive two seats at this stage.) At the next stage, seats not yet allocated would be distributed based on vote scores within a larger region.

   The Paschalidis litigation concerned three parliamentary seats won in districts in the region of Central Macedonia. The reelection of PASOK deputy Giorgos Paschalidis in the district of Pella was challenged by losing ND candidate Parthena Fountoukidou before the Supreme Special Court (SSC), the competent court for parliamentary election disputes. (5) She questioned the validity of some individual ballots, but more importantly she claimed that the electoral quotient for Pella was wrongly calculated, because the numerator included only the votes cast for the various parties: it failed to add in the blank ballots presumably cast as protest votes. (6) As chance would have it, including the modest number of blank ballots in the total would raise the electoral quotient for Pella sufficiently that PASOK would earn only allocation, (7) Pasone seat rather than two at the first stage of chalidis would lose his seat, Fountoukidou would gain hers at the second stage, and additional repercussions would follow for other candidates in Central Macedonia, including the election to Parliament of Achilleas Karamanlis, an uncle of the new Prime Minister. (8)

   A possible difficulty for Fountoukidou's argument was that blank ballots were not normally counted toward the electoral quotient. Indeed the presidential decree implementing the electoral statute had been interpreted as excluding them, and the SSC had previously held (in a 1999 decision involving European Parliament elections) that the Greek Constitution did not require them to be counted. (9) The SSC consists of eleven judges drawn from the three highest courts, the Court of Cassation, the Council of State, and the Court of Auditors. (10) The composition of the SSC panel convened for the hearing of Fountoukidou's challenge also engendered dispute; it has been alleged that the President of the Court of Auditors improperly removed himself from the case in favor a junior Vice President of his Court who had been appointed after the election. (11) However that may be, the SSC ruled by six votes to five in favor of Fountoukidou's challenge. (12)

   The majority of the SSC found the exclusion of blank ballots from the calculation of the electoral quotient to be unconstitutional. It quoted provisions of the Greek constitution declaring popular sovereignty as the foundation of government and describing its exercise in parliamentary elections, and noted the corresponding provision of the European human rights convention. (13) The majority emphasized parliamentary elections as the most important vehicle of popular sovereignty, and the need for equal treatment of all valid ballots. It maintained that the minimum legal effect guaranteed by the Constitution to all valid ballots--whether expressing positive support for a party or intentionally left blank--included counting them toward the electoral quotient. Treating the blank ballots merely as a statistic to be reported would reduce them to the equivalent of invalid ballots, and would not respect the free expression of the voter's will. The legislature had discretion in structuring the electoral system, but excluding valid blank ballots from the electoral quotient in parliamentary elections struck at the core of the principles of popular sovereignty and equality in voting and violated the Constitution.

   The SSC judgment also set forth the dissenting view of five judges, and the particular view of one of them. (14) The five argued that, although the Constitution implicitly guaranteed the right to cast blank ballots, the legislature could legitimately differentiate between the effects of ballots choosing a party and ballots expressing no choice, in relation to the current system of representation. In addition, one dissenter wrote separately that the Constitution favored stability in electoral law, (15) that the present decision departed without justification from the SSC's 1999 decision, and that the legislation sufficiently respected the free will of the voters by enabling them to cast a blank ballot and have it tabulated and reported. (The majority opinion did not expressly respond to the claim of inconsistency with its own precedent. (16))

   Under the Greek Constitution, the SSC is the final judge of electoral disputes. (17) Thus, Fountoukidou prevailed and took her seat in Parliament. But that was not the end of the story, because Paschalidis sued Greece before the European Court of Human Rights in Strasbourg. He argued that the deprivation of his seat violated the European Human Rights Convention.

2. WHAT HAPPENED IN STRASBOURG

   Paschalidis challenged the SSC's decision under the free elections provision of the European human rights system, Article 3 of Protocol No. 1. (18) That provision guarantees "free elections ... under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature." The European Court of Human Rights (ECtHR) has long construed it as protecting the individual's right to vote, the individual's right to stand as candidate, and the right of elected candidates to exercise their legislative offices.

   A chamber of the ECtHR gave judgment in April 2008, holding unanimously that Greece had violated Article 3. (19) The ECtHR had no objection to the counting of blank ballots per se. Article 3 leaves the European states considerable discretion (a wide "margin of appreciation") to structure their electoral systems...