He says that there is no right to request a recount "based on mere will"
The Prosecutor's Office of the Constitutional Court (TC) has been interested in rejecting the PSOE's appeal against the decision of the Supreme Court (TS) to reject its request to review some 30,000 invalid votes from the general elections of July 23 in the province of Madrid. and to annul the proclamation of PP leader Carlos García Adanero as elected deputy.
In a 21-page document signed this Monday, to which Europa Press has had access, prosecutor Pedro Crespo has ensured that the reasoning set out in the Supreme Court's ruling conforms to the doctrine emanating from constitutional jurisprudence.
The representative of the Public Ministry has insisted that the previous pronouncements of the Constitutional "do not allow recognizing the existence of an unconditional right, based on the mere expressed will of the interested parties, to the review by the Electoral Boards of the votes declared invalid and not protested. , nor sustain that said supposed right forms part of the essential content of the fundamental right to have equal access to representative public offices".
Thus, the Constitutional Prosecutor's Office has understood that the Supreme Court's decision does not violate the fundamental right of the socialists. This decision takes place after the TS Prosecutor's Office was in favor of the petition that the PSOE extended to the high court last August.
The TC prosecutor has considered that the Socialist Party's argument that its right to access representative public positions under conditions of equality has been violated "lacks the slightest argumentative development and, what is more decisive, the slightest factual support." and evidentiary". "Such a circumstance excludes any possibility of addressing, with the minimum guarantees required by procedural contradiction, the plaintiffs' complaint," he noted.
Crespo has agreed with the Supreme Court justices that the review of null votes cannot be agreed based on "suspicion" or "speculation" because "an electoral process cannot be invalidated on the basis of such generic presumptions."
The socialists insisted in their appeal that the Constitutional Court had already approved a recount of votes in Badajoz in 2015 by an even smaller margin than what they denounced in the last 23J elections. The Prosecutor's Office has explained that said TC ruling "does not in any way support the idea of an unconditional right."
Thus, the Public Ministry has stressed that given that "the only argumentative support" of the PSOE is said ruling of the TC and that "the Chamber itself - of the Constitutional Court - has already been able to verify and has declared that such doctrine does not exist" this "would be sufficient for the denial of the amparo."
For the prosecutor, the claim of the socialists - which is not formulated "as a right to review the vote declared null, but rather the right to do so without the need for any reason to exist or be alleged" - "is lacking (... ) of precedent or paragon in the constitutional doctrine relating to the configuration and protection of fundamental rights".
Along these lines, the Prosecutor's Office has stressed that this is a matter that is not "trivial" because "an absolutely open conception" of the right of review - such as that proposed by the PSOE - "could facilitate its widespread use in the event of a result 'tight' electoral at the national level".
In his opinion, that the "mere and exclusive" will of the electoral contenders "automatically forces the reopening of the debate on the validity of the votes already declared null (...) is incompatible" with the principle of proportionality because "by conceiving a materially unconditioned right, the very possibility of weighing its exercise against other rights or interests is ruled out."
DELIBERATION OF THE TC
Now that the TC already has the allegations of the Prosecutor's Office and the PSOE on the table - and that the magistrates have refused to remove Judge Laura Díez from the deliberation, as requested by the PP because she is a former Moncloa official -, the Second Chamber will meet tomorrow, Tuesday, at 9:00 a.m., urgently to decide whether to review the null votes of July 23 in Madrid.
The Second Chamber is expected to be divided into blocks again, since the two conservative judges that comprise it - César Tolosa and Enrique Arnaldo - were against admitting the socialist appeal for processing.
In a private opinion, to which Europa Press has had access, Arnaldo defends that the Organic Law of the General Electoral Regime (LOREG) does not recognize a supposed general and unconditional right to review null votes not protested in the act of general scrutiny." .
Along the same lines, other voices from the court of guarantees consulted by this news agency understand that the LOREG does not allow recounts to be carried out without there being indications of irregularities.
Furthermore, they warn that, if the TC finally agrees to the PSOE's request, a dangerous precedent will be set, since it will open the door for any party to request a recount when it is dissatisfied with the electoral result.
KEY IN THE INVESTMENT
The invalid ballots allowed the PP leader Carlos García Adanero to be proclaimed as an elected deputy, thus "cutting off" the possibility of the socialist Javier Rodríguez Palacios taking the seat, according to the PSOE.
If it gets one more seat, the PSOE would have an easier time with a hypothetical investiture of Pedro Sánchez because it would no longer need the vote in favor of Junts, but an abstention from Carles Puigdemont's party would be enough.
The Socialist Party went to the Constitutional after the Supreme Court (TS) considered that "the mere numerical difference in the results that are adduced in this case (1,200 votes) is not a sufficient basis for the review."
The magistrates of the Vacation Chamber of the TS understood that the PSOE did not comply with the requirements set by the Constitutional itself because "arithmetic data or solvent statistical calculations had not been provided to verify, even hypothetically, the relevance of the vote review in the final result and in the attribution of the contested seat".
The Supreme Court, contrary to the criteria of the Prosecutor's Office, stressed that it could not be accepted that in this case "the mere adjustment of the result" required the "monitoring or verification of the performance of each Board in the performance of its functions."