Disinformation, fraud and electoral repetition

Abstract

On 6 December 2024, Romania’s Constitutional Court cancelled the first round of its presidential election on the grounds that the freedom to vote had been infringed by disinformation suffered by citizens during the election campaign. For the first time in history, the elections of a State of the European Union were cancelled for reasons unrelated to specific and quantifiable procedural irregularities in order to attribute such an effect to the electoral manipulation of public opinion on the Internet caused by the alteration of the technical conditions of the algorithms of social networks. This paper does not limit its scope to the case of Romania’s electoral cancellation but also analyses the critical moment that contemporary democracies are experiencing, threatened by disinformation and the risk significantly increased by the widespread use of artificial intelligence in the electoral field. In particular, the positions and strategies developed by European Union, OSCE and, in particular, Council of Europe to combat disinformation and ensure the use of technology that respects fundamental rights during the electoral period are studied. The evolution of Venice Commission’s doctrine on electoral cancellation and repetition and its current prudent position on the limited relevance of disinformation as an invalidating irregularity of the electoral results is analysed. Despite its remarkable evolution in the assessment of the impact of new technologies (including artificial intelligence) and in the assessment of other irregularities (foreign interference, influence of the media, irregular financing) invalidating the electoral process, the Venice Commission has expressed its doubts about considering disinformation as an invalidating phenomenon only in exceptional circumstances, regulated, concrete, objective, reasoned, proven, transparent and determinant of the electoral result; which is reasonable if we consider the extraordinary importance of an electoral annulment and repetition for the credibility and legitimacy of the democratic system. Contemporary democracies are experiencing a critical moment, threatened by disinformation, but electoral regulations are still anchored in the past and focused on the offline context, so their applicability and effectiveness are very limited in the Internet age, despite the fact that the electoral campaign on the Internet requires increased transparency, combat manipulation, guarantee plurality, safeguard privacy against advertising micro-segmentation, avoid online platforms censorship and fight against disinformation campaigns by governments (national or foreign) or private corporations.

Summary
I.- INTRODUCTION. II.- THE IMPACT OF DISINFORMATION ON
ROMANIA’S PRESIDENTIAL ELECTION. A) THE CANCELLATION
OF THE FIRST ROUND OF ELECTION BY THE CONSTITUTIONAL COURT. B) THE INVALIDATION OF THE FAR-RIGHT CANDIDATE AND ELECTORAL REPETITION. III.- ANNULMENT AND
REPETITION OF ELECTION IN THE COUNCIL OF EUROPE (VENICE COMMISSION). A) THE ELECTORAL ANNULMENT COMPETENCE OF THE CONSTITUTIONAL COURT ACCORDING TO
THE CODE OF GOOD PRACTICES IN ELECTORAL MATTERS (2008)
AND REPORT 913/2018 ON THE RESOLUTION OF ELECTORAL
DISPUTES (2020). B) URGENT REPORT 1218/2024 ON THE CANCELLATION OF ELECTORAL RESULTS BY THE CONSTITUTIONAL
COURT (2025). 1) THE BROAD JUDICIARY AND THE LACK OF
DETAILED NATIONAL LEGISLATION. 2) ELECTION CANCELLATION AS A LAST RATIO. 3) THE IMPACT ON THE ELECTORAL RESULT AS A BASIC CONDITION: CRITERIA. 4) RELEVANCE AND
TRADITIONAL TYPOLOGY OF “QUANTIFIABLE” ELECTORAL
IRREGULARITIES. IV.- THE VENICE COMMISSION AND DISINFORMATION AS FRAUD IN THE ELECTORAL PROCESS: EVOLUTION. A) REPORT 925/2018 ON DIGITAL TECHNOLOGIES AND
ELECTIONS (2019). B) REPORT 974/2019 ON PRINCIPLES FOR THE
USE OF DIGITAL TECHNOLOGIES RESPECTING FUNDAMENTAL
RIGHTS IN ELECTORAL PROCESS (2020). C) THE INTERPRETATIVE DECLARATION OF THE CODE OF GOOD PRACTICES IN
ELECTORAL MATTERS, DIGITAL TECHNOLOGIES AND ARTIFICIAL INTELLIGENCE (2024). D) DISINFORMATION AS AN INVALIDATING IRREGULARITY OF THE ELECTORAL RESULT IN REPORT 128/2024: A PRUDENTLY CONSERVATIVE DOCTRINE. V.-
THE FIGHT AGAINST DISINFORMATION IN THE EUROPEAN
UNION. VI.- DISINFORMATION AS A THREAT TO CONTEMPORARY DEMOCRACIES (OSCE). VII.- CONCLUSIONS