The Superior Court of Justice of Andalusia has revoked the decision of the Contentious-Administrative Court number four of Seville to annul the elections of the Official College of Dentists of Seville held on the 25th of January 2019 and the proclamation of the elected candidacy of Luis Cáceres. Therefore, the Andalusian High Court has validated these elections and the re-election of Cáceres for a new mandate at the head of said collegiate entity.
In 2019 they faced each other at the polls Luis Cacerespresident for 28 years, and Rafael Martinez de Fuentes. A total of 1,748 dentists were called to the polls to elect the new president of their professional association. 684 people exercised their right to vote, of which 351 votes were for Cáceres and 321 for Martínez. Eleven blank votes and one invalid were counted. During the recount, the notary present reflected in the minutes that 123 consecutive votes had been cast for the candidacy of Luis Cáceres. Voting by mail had been overturned at the end of the face-to-face vote.
Initially, justice agreed with Rafael Martínez de Fuentes, who denounced a series of irregularities detected in the electoral process and related to the absentee ballot. Among others, it argued that “the possibility that a third person collects the necessary documentation to exercise the right to vote by mail and the lack of subsequent control as to whether it is the voter who has put the vote in the envelope intended for it, and the lack of subsequent verification as to whether it is the voter who has personally sent their vote by certified mail, imply a breach of the principles of direct or personal voting and of secret voting». He also pointed out a second infraction of the electoral norms when counting votes received by certified mail despite the verification that they had not been sent by the voters personally; and, the non-elimination of the two or more votes cast by mail by the same voter.
However, Luis Cáceres, represented by the lawyers Manuel Salinero and Álvaro Moreno, and the Andalusian Council of Official Colleges of Dentiststook the matter to the Superior Court of Justice of Andalusia, which has agreed with the winner of the elections, who has not stopped exercising his position at the head of the collegiate entity.
In the appeal sentence, the magistrates state that the ruling of the Contentious-Administrative Court annuls the electoral process before “the suspicion that, in a count of 680 voters, with 239 postal votes of which 230 were validated because the pertinent certifications were issued, assessing that the same unknown person and with the same illegible signature deposited them at the post office on different days, it is suspected that these votes were not really cast by the members but by the person whom they authorized to receive the relevant documentation to vote.
The position of the court of appeal
However, it is the criterion of the TSJA that «the aforementioned suspicion is not enough, according to the transcribed jurisprudence, to annul the process, assessing that none of the members who requested to vote by mail and appointed a third party to receive the necessary documentation to exercise the right to vote, has issued any complaint that the documentation has not been delivered or they have voted for him. It is only proven that the presentation of these votes in the post office was not made personally by the members in a figure of 142 votes, but it is the criterion of this Chamber that the interpretation of the collegiate statutes does not derive that the act of presentation of voting by mail at the post office is a very personal act, as if it were the collegiate requesting certification of being registered in the census in order to exercise their right to vote by mail.
It is also a practice vote-by-mail presentation at the post offices by third party, which is expressly admitted in the statutes of other associations.
In short, “the mere possibility that the person authorized by the collegiate to receive the documentation to vote, which already denotes a show of trust from the voter, proceeded to retain the documentation and exercise the vote for the collegiate, when there has been no verified any complaint from a collegiate, not enough to annul the electoral process». For this reason, he revokes the ruling of the Contentious-Administrative Court number four of Seville and validates the victory of Luis Cáceres in the 2019 elections to continue being president of the College of Dentists of Seville.