On April 14 Venezuela will go to presidential elections again, and the country’s electoral system is under scrutiny once more.

On March 15, U.S. Assistant Secretary of State Roberta Jacobson said “We believe that the Venezuelan people deserve open, fair, and transparent elections in which all can vote with confidence that their decision will be respected…That will be a little difficult, but that is what Venezuelans and the international community should support.”

This generated an immediate response by Tibisay Lucena, president of Venezuela’s National Electoral Council (CNE), who said that “Venezuela has an electoral system that guarantee’s the sovereign decision of the electorate because it is audited at each step of the process.”

Indeed, Jacobson’s focus on election-day transparency seems misguided since the results of the October 2012 presidential election were verified by the “quick counts” of independent domestic observers such as the Venezuelan Electoral Observatory (OEV) and the Electoral Observation Network of the Education Assembly (ROE) as well as opposition candidate Henrique Capriles’ own campaign. Indeed, Capriles conceded his defeat by Hugo Chávez the same evening, leaving evidence-free claims of fraud to only the most radical government opponents.

This does not mean that Venezuela’s electoral democracy is beyond reproach but rather that attention should be focused elsewhere. While all serious audits noted the strength of the election-day platform, independent assessments also significantly criticized the CNE’s failure to ensure a fair campaign against the incumbent.

Of course, as the Carter Center suggested in its 2012 report (p.38), there are aspects of incumbent’s advantage that are legitimate. Indeed one of the basic ideas of democracy is that voters can reward or punish an official for his or her performance, and incumbency can be as much a burden as an advantage.

Incumbent’s advantage becomes unfair advantage–what in Venezuela is referred to as “ventajismo”–when it entails the use of state resources and institutions to remain in office. In Venezuela this has two dimensions. First, state resources can be used on behalf of the campaign, for example: state media can be used for campaign messages, state vehicles and employees to mobilizing supporters, public office for campaigning, and public monies for campaign expenditures.

Second, it creates a special problem when one of the candidates or parties in this case, has been in power long enough “to have influenced the appointment of oversight mechanisms and authorities. The strength of the regulatory mechanisms and the authorities who enforce them then determine to a great degree the ability to counter the natural advantages of incumbency and to ensure a sufficiently level playing field to guarantee an equitable competition” (Carter Center, p. 32).  Put differently, the second dimension of incumbent’s advantage makes it difficult to control the first.

In the case of the CNE, four out of the five rectors are strongly affiliated with the Chávez government-two of them relinquished their membership in the PSUV only days before being named in December 2009. Furthermore, the current electoral law was written and passed by a National Assembly overwhelmingly controlled by the PSUV.

In this series of three posts we are going to analyze the campaign conditions for Venezuela’s snap election, looking at recent news, our analyses of conditions for the 2012 elections, and the final reports of the Carter Center’s 2012 study mission and the Observatorio Electoral Venezolano (OEX). In this post we will look at the presidency and incumbent’s advantage, in coming days we will look at advertising and media, the electoral registry, and observation.

The Presidency

The first issue of this campaign season actually had nothing to do with the CNE but rather with the Supreme Court’s (TSJ) ruling regarding the presidency. On March 8, the day of Chávez’s funeral, the TSJ ruled that Nicolas Maduro could occupy the position of Interim President and run for president. There are legitimate questions regarding whether it should have been Diosdado Cabello rather than Maduro who became interim president (since Chávez was never sworn in) and whether Maduro should have remained Vice President while also serving as acting president, or ceded his position as Vice President to become interim president (an important point because an acting VP cannot run for president).

What seems clear is that the TSJ ruling violates existing electoral law in allowing Maduro to run for president while serving as president. In 2006 the TSJ ruled that only in cases of reelection was the need to vacate public office waived. Under this ruling, Maduro should not be allowed to run for president while holding the presidential office because he is not up for reelection (see legal scholar Jose Ignacio Hernandez’s excellent analysis here.) In protest, the opposition put out a press release and declined to attend the special session of the National Assembly in which Maduro would take the oath of office.

The opposition’s hasty press release rambled, and the optics of abstaining from the oath of office ceremony were not good. But they did have their finger on a real issue. Running from the office of the presidency in an oil state with weak institutions provides exceptional incumbent’s advantage. For example, one economist estimated that public spending increased by 45% in 2012, which undoubtedly helped Chávez cruise to victory.

Current candidate Nicolas Maduro mentions new public works projects in almost every campaign stop. Under current regulation, public officials are prohibited from campaign activities only while engaged in official duties, which the CNE interprets to mean working hours. However, it doesn’t clearly regulate how and whether a candidate can incorporate the functions of office into campaign events.

As the OEV summarizes in its report, “the current legal framework has many gaps and is imprecise in determining when a president is functioning as such and when he is functioning as a candidate” (p.8).

Current legislation is also lax in rules for disclosing the origin of resources and expenditures, meaning that it is hard to determine if there is use of state resources for tangible campaign expenses. Records of donations and expenditures need to be filed regularly with the CNE. But they are not made public so it is impossible to know how thorough they are or what they say.

In this election, coming shortly after the funeral of President Hugo Chávez, incumbent’s advantage takes on even more extraordinary dimensions. In the two weeks after the death of Chávez, the acts of state involved in burying the deceased leader had an openly partisan dimension, with official remembrances of Chávez turning into: praise for his political project, conflations of this project with the state and support for his successor Nicolas Maduro, and conflations of Chávez’s followers with “Venezuelans.”

These conflations will likely crest in coming days. The official campaign closes tomorrow April 11, the anniversary of the 2002 coup against Chávez. In recent years, celebrations surrounding April 11-13 have become the most important ritual events of the year by Chavismo, being used to show Chávez supporters as heroic and the opposition as undemocratic. It is likely that with the official campaign over, Maduro will have the stage to himself, presiding over commemorative events.