Illustrative image | Romanian flag. (Photo: EPA-EFE / Robert Ghement) | Pro-European independent presidential candidate and Bucharest Mayor Nicusor Dan. (Photo: Alex Nicodim / NurPhoto via AFP) | Judge Dhaya Pillay. (Photo: Supplied) 
Social media, digital technology and illicit political campaign funding are emerging as new angles for political contestation. Are you worried about them derailing free and fair elections? Then read on.
Thirty-five years after the Cold War ended, electoral authorities find themselves walking the tightrope of managing elections in constitutional democracies in decline. Courtrooms to contest election results are now another battlefield for political power.
The recent election in Romania is a case study in point. Of interest to judges and election management practitioners like me is the evaluation of evidence of the influence of social media and political funding on elections.
It is unlike assessing the hard facts that determine whether a person meets the requirements to stand as a candidate in elections, such as being a registered voter and paying the prescribed fees. When assessing the impact of social media and party funding on elections, decision-makers must exercise their discretion and make value judgements.
However, these recent innovations in election practice were not included in the university courses for most judges and election management practitioners. Hence, the Romanian elections offer an opportunity for study for everyone concerned about whether elections deliver democracy.
Romania’s 2024-2025 presidential election — a chronology
On 24 November 2024, Romania held its ninth presidential election since its revolution in 1989. Cǎlin Georgescu won by a 40% lead while Elena Lasconi got 26% of the votes. The incumbent prime minister lagged behind Lasconi. Without an outright majority of more than 50% of the votes cast, a run-off would ordinarily have followed.
Instead, candidate Cristian Terheş, who got 1% of the votes cast, asked the court to annul the election results because another candidate’s votes were transferred to Lasconi — allegedly. Hence, on 28 November 2024 the Constitutional Court of Romania (CCR) unanimously ordered the “re-verification and recounting” of the votes.
Saying that it would give reasons later, the court postponed its ruling on the validity of the elections to the following day, presumably in anticipation of the results of the recount. But, on 29 November the court postponed the matter again.
On 2 December 2024 the court ruled on Terheş’s challenge to the validity of the elections. It found no clear evidence of fraud or irregularities that met the threshold required to alter the candidate rankings.
Satisfied that the allegations were minor administrative errors immaterial to the outcome of the elections, the court dismissed Terheş’s request for annulment. It validated the results of the first round of elections and directed Georgescu and Lasconi to participate in the run-off on 8 December.
But, on 4 December the intelligence and security services of Romania produced to the court declassified information concerning cybersecurity threats, the use of digital technology and information campaigns that they alleged affected the integrity of the elections. On 6 December 2024, the court annulled the November 2024 presidential election.
That election was rerun on 4 May 2025. Georgescu was not allowed to participate as a candidate because, the court said, he had violated electoral laws.
Nicușor Dan won 20.99% and George Simion 40.96% of the votes. In a remarkable about-turn, in the run-off election held on 18 May, Dan won with 53.6% against Simion’s 46.4%.
Dan was elected President of Romania. Neither belonged to the party that had led Romania after the revolution. For the first time, that party failed to reach the final. A 65% voter turnout was the highest for a quarter of a century. For Georgescu’s prospects of success on appeal, read on.
Observations
It took an election, a rerun of that election and a run-off election to elect a president for Romania. Costs for each election would have been about €200,000 (about R4m). All three elections were run within a narrow time frame of about six months.
Notwithstanding the novelty and complexity of assessing the influence of social media and political funding, the court stepped up to the task. The ultimate arbiter to declare whether the elections were free and fair was the court. However, to successfully shepherd the elections, it relied on its reciprocal relationship with the Permanent Electoral Authority.
Incumbency was no guarantee of reelection. Notwithstanding the intensity of the contestation, there was no unconstitutional change of government. The rule of law had prevailed.
Worth pondering
The 6 December judgment is the subject of this discussion. It raises the problems around the abuse of social media, digital technology, artificial intelligence and illegal campaign funding from unreported sources. Pondering the following four questions is a starting point:
- Did the law empower the court to annul the elections and extend the term of the sitting president until a new president was elected?
- Did the “Information Notes” presented to the court justify its findings and conclusions?
- For elections to be annulled, what must the quality and quantity of the standard of evidence be?
- May the Constitutional Court of South Africa consider and apply the judgment of the Romanian court?
Below, a brief description of the powers of the court in electoral matters is followed with summaries of the court procedure and the judgment.
The Constitutional Court of Romania
Nine judges are appointed to the court for nine years. The Chamber of Deputies, the Senate and the president of Romania appoint three judges each. Having representatives appoint the judges is Romania’s way of asserting the legitimacy of the court, and consequently, acceptance of its decisions.
A striking feature is that the court is not a typical court of law representing the judicial arm of government. Rather, its powers flow from its role as “the guarantor of the supremacy of the constitution”. Its oversight includes ensuring that public power is exercised constitutionally.
The court may act not only when it receives information from citizens and nongovernmental organisations about noncompliance with electoral laws, but also of its own accord. In this instance, the state security services triggered the court’s judgment. Decisions of the court are final and binding.
Court procedure
Sittings of the court are constituted by all nine judges and an assistant magistrate who is the Judge-Rapporteur. The president of the court chairs the meetings. He may invite anyone to attend the proceedings if he thinks it necessary. When the court receives a complaint, it decides the matter without notice to or hearing anyone. The hearings are not public. But the decisions are published.
The court’s 6 December 2024 judgment
The same panel of judges who upheld the November elections on 2 December overturned the ruling on 6 December. In the judgment, the court exercised powers and prerogatives to ensure that the procedure for the election of the president of Romania was observed and to confirm the ballot returns.
These prerogatives, the court said, were its “role in the constitutional architecture, i.e. of guarantor of the supremacy of the Constitution”.
The court received and considered “Information Notes” from Internal Security, the Intelligence Services and the Special Telecommunications Service. The Information Notes led the court to find that the electoral process for the election of the president of Romania had been vitiated throughout by many irregularities.
This distorted the freeness of the votes cast and the equal opportunities of the electoral competitors. Lack of transparency and fairness of the electoral campaign, and disregard for the law relating to campaign funding, “converged” to undermine “the essential principles of democratic elections”.
That was the crux of the court’s finding. It proceeded to examine the irregularities as violations of constitutionally guaranteed fundamental political and human rights.
Sovereignty
Fair elections, the court recognised, were an “expression of sovereignty”. Sovereignty imposed on the state the duty to “ensure a transparent electoral process… so as to guarantee the integrity and impartiality of the elections”.
The court placed a positive duty squarely on the state to “prevent any undue interference in the electoral process”, build resilience among voters, raise public awareness about the use of digital technologies in elections, provide appropriate information and support and “address the challenges and risks” likely to undermine the integrity of elections.
Information Notes
The Information Notes exposed “manipulation” of the vote and “distortion of the equality of opportunity for the electoral competitors, through the non-transparent use of digital technologies and artificial intelligence”.
Funding from unreported sources of the electoral and online campaigns compounded the distortion. Altogether, they affected both the “free expression of the citizens’ vote”, freedom to form an opinion, and the right to be “properly informed” before making decisions.
That impugned the rights to having both “accurate information about the candidates and the electoral process from all sources”, and protection against undue influence.
Disinformation
The court described “political advertising” that sometimes turned into “disinformation”. The political nature of advertisements were not disclosed. They were sponsored from outside the country, or subject to “targeting techniques” or “ad-delivery techniques”. This “propaganda or electoral disinformation campaigns” amounted to undue interference.
Misinformation
The court found the electoral campaign of one of the candidates to be “aggressively promoted”. It circumvented national electoral laws and abused the algorithms of social media platforms. The court found “evidence” for the manipulation of the vote in the electoral materials; they did not bear the specific symbols of electoral advertising, as required by law.
Additionally, the candidate received “preferential treatment” on social media platforms. This conduct, the court said, resulted in voters being misinformed. It led to a distortion of the voters’ expression of the free will to vote.
Equality of opportunity
On the right to equality of opportunity, the court said that the state must adopt an “objective and impartial attitude” towards all candidates and parties. It must apply the same legislation uniformly to all. To ensure equal opportunities, limiting spending on electoral advertising would be consistent with the guidelines adopted by the Venice Commission.
The court found that irregularities in the election campaign created a clear inequality between “the candidate who manipulated digital technologies and the other candidates”.
Thus, the “considerable exposure of one candidate led to the directly proportional reduction of the online media exposure of the other candidates”.
Transparency, integrity and impartiality
In the opinion of the court, electoral candidates, political parties, supporters and sympathisers should use digital technologies and artificial intelligence transparently to ensure the integrity and impartiality of the elections. They must avoid hindering voters from freely forming their opinions about the candidates. They must also refrain from misleading voters about the identity and quality of candidates and about the voting procedures.
Political funding
The court extended the principles of legality and transparency to the funding of the electoral campaign and online electoral advertising. It recommended that social media platforms should consistently disclose data on political advertising and their sponsors, in compliance with the Venice Commission’s Interpretative Declaration of the Code of Good Practice in Electoral Matters as Concerns Digital Technologies and Artificial Intelligence (10 December 2024).
The court found that a candidate (Georgescu) had infringed the laws relating to the funding of the electoral campaign. He had submitted statements to the Permanent Electoral Authority regarding his campaign budget, which he had declared to be zero Romanian lei. That contradicted the data presented in both the Information Notes and the predictably high costs of electoral campaigns.
The “obvious incongruity between the size of the campaign conducted” and the non-disclosure of expenses violated the principle of transparency of the funding of electoral campaigns, and raised “suspicions about the fairness of the elections”.
Rerun
Based on these findings above, the court annulled the entire electoral process for the election of the president of Romania. It ordered that the whole elections should be rerun. The government had to set a new date for the election and a new timetable for its implementation.
Finally, the court ordered the president of Romania to exercise his term until the new president-elect took the oath.
Prospects of success on appeal
Georgescu appealed unsuccessfully to the European Court of Human Rights (Călin Georgescu v Romania, application no. 37327/24). Notwithstanding the final and binding nature of the Constitutional Court of Romania judgment, the European court heard the case.
Georgescu argued that the annulment of the entire presidential election had been based on “unsubstantiated accusations”; that the decision had been adopted in a non-transparent manner; that he had no remedy to challenge it; and that this decision had been the result of political interference by “the ruling party” in charge of the electoral process.
On 21 January 2025, the European court rejected Georgescu’s request for the suspension of the Constitutional Court of Romania’s annulment and the resumption of the elections on the basis that the circumstances were not exceptional.
Piercing veils of opaqueness
Clearly, courts cannot shy away from assessing whether social media and campaign funding influence elections unfairly. Neither can election management bodies. Piercing veils of opaqueness obscuring political funding is very much the business of both the courts and election management bodies responsible for overseeing political funding. If campaign spending exceeds the amount of funds disclosed, the authorities must intervene.
Returning to the four questions above, the court’s extraordinary powers have their roots in Romania’s inquisitorial legal system. An inquisitorial court actively investigates the case, gathers evidence and questions parties. The judge leads the hearings, establishes the facts and applies the law.
Unlike inquisitorial proceedings, an adversarial system, such as in South Africa, relies on the parties to bring their evidence and argue their cases before judges, usually sitting in courts open to the public. Ultimately, in any system it is the authenticity and reliability of the information and evidence before judges that matters.
Analysing the Information Notes is impossible without access to them. The court judgment does not record or summarise their contents. Instead, it merely expresses its opinions and conclusions about the Information Notes.
Not only must this nondisclosure in the judgment be viewed through the lens of inquisitorial proceedings, but also with due regard for the interests of state security.
As for setting standards, whether the evidence should be beyond a reasonable doubt, reasonably probable or clear and convincing will depend on, among other things, the nature of the violations and the materiality of their impact on the overall freeness and fairness of the elections.
As for the last question, South African courts may consider but not necessarily apply Romanian law as foreign law. Similarly, our courts may consider the codes of the Venice Commission but not necessarily apply it.
South Africa is not a member of the Venice Commission but supports its work. Much will depend on the quality and quantity of evidence before a South African court will annul an election. DM
Dhaya Pillay is a Judge of the High Court of South Africa (retired), and a Commissioner of the Electoral Commission of South Africa. She writes in her personal capacity.