Why is sanctioning the call to vote BNS a political mistake?

The Final Report on Electoral Activities for the 2021 legislative elections was recently released by the Commission of Electoral Affairs (CAEAL). I will not comment on the content of the document, but rather on two short paragraphs (page 55), which I transcribe here:

“The current Electoral Law does not provide clear sanctions for acts that incite or encourage voters to vote blank or produce null votes.

CAEAL considers that these acts obviously aim to disrupt electoral procedures and destroy electoral equity, proposing to establish the respective sanctions.”

The day after, I read in some newspapers that by sanctions, they should understand the possible criminalization of BNS (Blank, Null, and Spoiled) votes. I don’t know if anyone from CAEAL mentioned that. In any case, the idea of penalizing advocates of this type of voting is frightening, even in an electoral system where only a tiny fraction of the deputies are elected by direct and universal suffrage.

The concern of CAEAL is understandable, but one mistake cannot be corrected with another.

In the last election, a group of candidates was disqualified by CAEAL and excluded from the election. The decision was criticized and condemned in various instances, including the European Union, China’s trading partner, and the United Nations Human Rights Commission in July 2022, citing a violation of the International Covenant on Civil and Political Rights (ICCPR). It should be noted that China is a member of the UN and even holds a permanent seat on the Security Council.

It is worth mentioning that there are no grounds for sanctioning the “promotion” of the BNS ballots. In any fair, democratic, and decent electoral system, this is a legitimate option for voters, possessing its own significance. For the Constitutional Court of Colombia, “the blank vote constitutes a valuable expression of dissent with political effects through which the protection of the freedom of the voter is promoted.” (Decision c-490/2011). It is therefore untrue to claim that BNS votes disrupt procedural or electoral equity.

Some academics attribute their appearance to France, particularly the legislative elections of August 21 and September 4, 1881, in which an unusual number of votes under these conditions were recorded (Ihle & Deloye, RFSP, 1991). It is certain that their existence is deeply rooted in democracies to the extent that in some countries, constitutional parties have been created with the explicit message of promoting blank ballots.

In Spain, the party “Escaños en Blanco” states in its electoral program that its elected representatives will not take office or receive any subsidies, seeking to leave the parliamentary seats empty in order to force a change in the electoral system and the current system of representation.

In other circumstances, such as Peru and Brazil, the Shining Path, a Marxist-Leninist movement, in 1983, and the Brazilian Communist Party, under the leadership of Luiz Carlos Prestes in the 1950 elections, called for blank votes as a form of protest against electoral fraud and democratic drift. Noble causes.

Other examples of appeals for blank voting come from the USA (Boston 1985), Argentina (“Voto bronca”, elections of 2001, 1957 with Péron), and Spain in 2004, during the Basque Country elections. In France, there is also a Party for Blank Votes (“Parti du Vote Blanc”), and in Quebec (Canada), there is the Null Party (“Parti-nul”). As far as I know, in the USA in 2012, only the Republicans tried to eliminate blank voting from the ballots in Nevada (Superti, 2016).

Each electoral system has its own rules, although there is no news of democracies or direct and universal suffrage systems sanctioning the call to blank, null, or abstention votes, either through fines or imprisonment. In Portugal, in the first elections after the Carnation Revolution in 1974, the Armed Forces Movement called for blank voting and intended to derive political consequences from it. There was no problem, and the democratic regime was consolidated.

Regarding their meaning, BNS votes can have various interpretations, but in the case of deliberate null and blank votes, many see them as a perfectly non-violent form of protest aimed at expressing voters’ dissatisfaction with the poor political offer, the low quality of candidates, and as a manifestation of a sense of political corruption or simple dissatisfaction with the electoral rules.

If voters believe that the electoral mechanisms are flawed and the candidates unprepared, they should be able to express as much legally and peacefully. In countries like Ukraine and Russia, until dictator Putin eliminated it, the ballot even listed the option “Against all” or “None of the above” (Superti 2016, Alvarez et al. 2018).

In India, the Supreme Court (Writ Petition (C) No. 161 of 2004, September 27, 2013) has held that “Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Art. 21 i.e., the right to liberty. (…) The voter must be given an opportunity to choose a none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate.”

And in countries such as Greece, Switzerland, the Netherlands, Colombia, Peru, and even Mongolia, where elections must be repeated with new candidates if blank votes reach the level of 10% (David, 2022), this form of peaceful and legal political intervention is accepted.

In Macau, there is no discussion about the possibility of institutionalizing this option on the ballot.

However, to think that sanctioning the appeal to cast a blank or null vote is a possibility is sad. It is not part of the inherited juridical-political matrix.

CAEAL or the Macau SAR Government should not be afraid of voters. It is a bad sign when this happens, because only bad rulers fear popular scrutiny. What matters is making abstention, blank voting, and null voting, in cases where it is not due to a filing error, less attractive by reducing their numbers and increasing participation. However, this can only be achieved by improving the electoral system, information, transparency, and the quality of the political offer. That is, by having better electoral programs and candidates who are well-prepared and ethically irreproachable.

Political disaffection is not combated by prohibition, fines, or criminalization; especially not in authoritarian regimes. Such approaches constitute a mistake and are not characteristic of civilized political societies. Political disaffection is combated by inclusivity, better policies, and more competence, making the electoral system “more dynamic and competitive.” (Urdánoz Gamusa, 2012).

Driving people away from participation, penalizing free and democratic political struggle, imposing fear and self-censorship on the expression of free opinion, and silencing people does not improve the legitimacy of any political-electoral system, no matter how bad it may be. It does not strengthen institutions and it does not increase love for the country and the party.

Just as in love, in politics it is necessary to have a serious and healthy relationship with the partner (the people), which cannot be achieved through violence.

In each historical moment, institutions and politicians must win the soul of the people through kindness, or else they will prove themselves incompetent for the task. The Chief Executive should consider this option before accepting CAEAL’s suggestion.

Sérgio de Almeida Correia , Lawyer and political scientist