Election Integrity Legal Framework

The legal framework provides the foundation on which institutions are built. For election integrity issues, the legal framework is usually set out in a number of interrelated statutes supplemented by regulations.

In most cases the foundation is the constitution, that is, the supreme law of a country. Added to this is other legislation including electoral laws, penal codes and civil rights statutes, as well as regulations and codes of conduct/ethics issued by the different bodies responsible for elections.

The legal provisions contain guidelines for structuring the electoral administration and instructions for electoral administrators on managing elections. They specify the rights and responsibilities of political parties, the media, voters and other participants.

The legal framework authorizes the electoral management body to administer elections according to the structure specified in its provisions. It empowers political parties to raise funds and participate in elections in accordance with the legal provisions. It safeguards the political rights of voters and their right to elect their representatives within the government.

Foundations for Election Integrity

To ensure that election results accurately reflect the will of voters, the legal framework must protect the principles of free, fair and competitive elections. Constitutions entrench the political freedoms needed for competitive elections. Regulations ensure the fairness of the process, equality of opportunity and accountability of all participants. Codes of conduct help prevent unethical behaviour.

The legal framework can foster election integrity by creating safeguards along with enforcement measures. Among the safeguards are the separation and limitation of powers, systems of checks-and-balances, and enforcement of the law.

The legal framework may give powers to specific bodies for specific functions. It may, however, limit these powers by dividing them between different institutions subjected to a series of checks. For example, electoral administration may be separated from enforcement; or an electoral agency may be given the power to administer elections, and another body may be authorized to delineate the electoral districts or administer public funds for political parties. Checks may be provided by delegating to an oversight agency or office (e.g. an inspector general) responsibility for monitoring the administration of elections, identifying problems and recommending solutions.

It is important to carefully define delegated powers so that electoral authorities know the scope of their responsibilities. And to avoid abuse, it is essential to limit the delegated powers.

Enforcement is essential for protecting election integrity. The legal framework should establish mechanisms for imposing enforcement as needed, ensuring the accountability of electoral authorities and other participants in the electoral process, and deterring corrupt behaviour. Enforcement is usually the responsibility of the justice system, the police, the courts and the prisons.

In newer democracies, rules on holding free and fair elections are still evolving. In those cases, it is important to include the basic principles in the legal framework. In countries in transition from authoritarianism to democracy, “the challenge is to negotiate electoral rules that all parties can accept and respect.” [1] Once the basic legal framework setting out these rules is in place, work can start on developing the institutional and administrative frameworks for the electoral process.

A reform of the legal framework for other purposes can be used to bring integrity back into the electoral process. This was the case in Mexico, where legal reform led to genuine democratic change. A new institutional framework and new modes of participation were created. The institutions then established procedures and operating methods that reinforced the election integrity provisions in the new legislation. [2]

In most countries, the legal framework for elections has evolved into a complex combination of statutes, regulations, judicial rulings and actual practice. Some election laws may be new and up to date, while others are outmoded but still in force. For integrity purposes, it is important periodically to review the entire legal picture in order to understand the legal framework and determine whether changes are needed.

In every case, conflict must be avoided between the various provisions in statutes and regulations. Electoral policy makers and administrators must understand how the different legal and administrative pieces fit together, providing a consistent legal framework for promoting and protecting election integrity. For example, do the penal codes cover election fraud that is criminal in nature? In a federal system, who has jurisdiction over electoral corruption—the national or state governments? Could a crime go undetected or unpunished because of a gap in the legal or administrative framework? Whether designing a new system or revising an existing one, electoral administrators and policy makers need to take a comprehensive look at all of the different laws, regulations and procedures that work to protect election integrity. Gaps, errors and conflicts in statutes or regulations must be identified and corrected.

NOTES

[1] Pastor, Robert A., “Mediating Elections,” Journal of Democracy, 9(1), 1998, p. 160. [2] Schedler, Andreas, Distrust Breeds Bureaucracy: The Formal Regulation of Electoral Governance in Mexico, Mexico City: FLACSO, 1999.