Laws are enacted by the Legislative
branch of government, implemented by the Executive branch and enforced by Executive
branch agencies and the Judicial branch. Electoral integrity may be supported
through a web of inter-related laws.
These can include a specific election statute defining and containing
provisions for enforcement specific electoral violations as well as other legislation
to enforce electoral laws and regulations. There may also be applicable
provisions in criminal codes and civil laws concerning personal injury and
violation of rights.
The right to an effective
remedy for persons whose civil and political rights are infringed is
well-established in international law.[1] As noted previously, those injured by
electoral abuses are within the scope of this protection, since the right to
electoral participation is enshrined in ICCPR Article 25. In addition, an authoritative interpretation
of the rights of persons whose civil and political rights are violated
indicates that the State has an affirmative obligation to prevent violations,
has responsibility for violations not only by its own officials but also by
third parties if proper preventive measures are not taken, and that failure to
undertake corrective action to restore a right once violated may constitute a
second violation of that right. In
addition, States are expected to take all sorts of institutional measures to
prevent and defend against rights violations, by officials or others; and
claimants may seek reparations from the State in addition to other remedies
(such as declarative and restorative relief).[2]
The Legislative branch of
government is usually responsible for legally establishing all official institutions
and enacting the laws required to implement the country’s constitution. For electoral integrity, laws implement the
principles of free, fair and competitive elections and providing the basis for
upholding these principles and ensuring compliance with them. Such laws should be
updated regularly to keep pace with political and technological changes.
In New Zealand,
Parliament’s Electoral Law Committee provides legislative responsiveness on
electoral issues. The committee is appointed by each new Parliament. After each
general election, the committee examines administrative and legal aspects of
the election. It reviews reports from the Chief Electoral Officer, the Ministry
of Justice and the Electoral Enrolment Centre, as well as public comments. It
then makes recommendations to Parliament, including proposing revisions to standing
electoral law.[3]
Electoral
Law
In place of a set of statutes,
many countries have enacted a comprehensive national election code, which
covers most aspects of the electoral process. Adoption of a single,
comprehensive election code helps minimize the risk of conflicts arising among different
pieces of legislation, especially as the various laws are amended over time.
Among the major elements
generally addressed through a comprehensive electoral code are: Appointment,
composition and mandates of the electoral management bodies; the calendar for
elections; voter eligibility and registration; candidate and political party
registration; procedures for voting and vote counting; oversight and
enforcement mechanisms; and penalties for violations of the law. The main
legislation also generally sets forth procedures and mechanisms for dealing
with complaints and disputes regarding the electoral process, except that
aspects of the complaint and appeals process may also be regulated through
administrative, civil, judicial and criminal legislation.
Applicable
Penal Laws
Election integrity issues that
involve fraud, corruption, intimidation or violence usually also fall under the
criminal laws (or codes) of a country. The criminal code generally applies to actions
that go beyond election-specific problems and go to issues of law and order, or
fraud and corruption in general. Some criminal codes also contain laws that
deal directly with electoral fraud and corruption; examples are provisions
regulating campaign financing, barring efforts to bribe voters, or interfering
with individuals’ human and civil rights (including the right to vote).
It is important to ensure that
different codes (or laws) have compatible provisions dealing with electoral law
violations and that criminal offences do not go unpunished because of conflicts
or omissions. This need was recognized in the recent electoral reforms in Mexico:
A special prosecutor’s office was created with responsibility to apply the
country’s penal codes to criminal acts related to elections.[4]
Civil
Rights Laws
Some countries have adopted
civil rights laws to prevent discrimination among persons in the exercise of
their civil and political rights, and protect voter rights in particular.
Supplementing other provisions that safeguard human rights, these laws target
specific areas of discrimination, or arbitrary or unequal treatment of
minorities or other groups by government or private individuals.
In the United States,
for example, Congress has passed a series of civil rights acts in the 1960s to
eliminate racial discrimination. The legislation outlawed arbitrary
discrimination in voter registration and created a commission to investigate
civil rights issues. In addition, Congress passed the Voting Rights Act, which
banned various procedures that had been used to prevent electors belonging to
minority groups from exercising their right to vote, or otherwise infringed on
their equality of voting.[5] Even
today, the US Department of Justice retains jurisdiction to review changes in
electoral systems enacted by states which had a history of discrimination in
voting, although several of the states still subject to this provision are
seeking to overturn it.
[1]
ICCPR, Article 2.3 provides: “Each State
Party to the present Covenant undertakes: (a) To ensure hat any person whose
rights or freedoms as herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been committed by persons acting
in an official capacity; (b) To ensure that any person claiming such a remedy
shall have his right thereto determined by competent judicial, administrative
or legislative authorities, or by any other competent authority provide for the
legal system of the State, and to develop the possibilities of judicial remedy;
and (c) To ensure that the competent authorities shall enforce such remedies
when granted.”
[2] UN
Human rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, U.N. DOC. ICCPR/C/21/REV.1/ADD.13 (GENERAL COMMENTS), 24 May 2004
[3] Electoral Commission of New
Zealand, Everything You Need to Know About Voting
Under MMP, Wellington:
GP Publications, 1996.
[4] Saldana, Agustin
Ricoy, “Electoral Offenses (Mexico),”
paper presented to the Third Annual Trilateral Conference on Electoral Systems,
Washington, D.C., May 8-10, 1996, proceedings published
by International Foundation for Election Systems, p. 10
[5] Plano, Jack and Milton Greenburg, The American Political
Dictionary, 8th ed, (New York:
Holt, Rinehart and Winston, 1989, p. 108
