Legal Framework of Electoral Integrity

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.

Constitution

A constitution is the supreme law of any country. It provides the legal framework for the government, designates the powers and duties of the branches of government or governmental agencies, and establishes the relationship between the people and the government. It enunciates the basic rights and obligations of citizens, and usually sets out the framework for the country’s electoral system.

To promote election integrity, the constitution may entrench the principle of universal suffrage, set the frequency of elections and specify the basic eligibility criteria for the major elected offices. The drafters of the constitution should take into consideration the capacity and conditions of the country. For example, an overly short interval between elections can be burdensome for some less developed countries. In countries emerging from internal conflict, a proportional representation system might allow for better power-sharing than a winner-take-all system. A constitution may entrench the basic political freedoms needed for competitive elections, such as freedom of speech, assembly, movement and the press. It may enable political actors to organize for the purpose of running for office, or to support interest groups.

A constitution may authorize institutions to undertake specific electoral functions. For example, it may authorize a government institution or an independent commission to administer elections, and may assign enforcement powers to the judicial system or a specific electoral court.

Legislation

Laws are usually enacted by the legislative branch of government, and are enforced by the police and the courts. A number of interrelated laws may support election integrity. There may be a specific election statute, along with legislation to enforce the law. There may be criminal codes for punishing illegal activity, and civil laws that deal with defamation of character and other acts causing personal harm.

In countries with a federal system of government, an added complication is that there are both local and national laws. The end result can be a maze of legislation with perhaps conflicting provisions. Laws must not be vague or too broad, or open to differing interpretations. Disputes arising out of conflicting laws can be settled only in court.

The legislative branch of government is usually responsible for establishing all the institutions and passing the laws required to implement the country’s constitution. For example, the constitution may provide for a system of local government. Legislative provisions must be adopted authorizing the electoral administration to hold elections for these offices. Other provisions are needed to govern local bodies; otherwise, the elected officials will have no authority.

For election integrity, laws must be adopted safeguarding the principles of free, fair and competitive elections. The laws must be updated regularly to keep pace with political and technological changes in the country.

In New Zealand, the Electoral Law Committee provides the needed flexibility. The committee is appointed by each new Parliament to consider electoral matters. After a 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, proposing revisions to the electoral law. [1]

Electoral Law

In place of a series of statutes, many countries have adopted a comprehensive national election law, which covers most aspects of the electoral process. Among these are: the mandates of the electoral policy and management bodies; the timetable for elections; voter eligibility criteria; candidate and political party registration; principles for polling and vote counting; oversight mechanisms; and penalties for violations of the law. The legislation also sets out the procedures and mechanisms for dealing with complaints and disputes regarding the electoral process.

Systems that have a single, comprehensive election law minimize the risk of integrity issues stemming from possible conflicts between different pieces of legislation. If there is a single statute, the enforcement mechanisms for upholding the law can be set out within that law, specifying the responsibilities of the electoral policy or management bodies, the courts, and other enforcement agencies.

Applicable Penal Laws

Election integrity issues that involve fraud, corruption or violence usually fall under the criminal codes of each country. The codes cover actions that go beyond election-specific problems and instead have to do with maintaining law and order, or fighting fraud and corruption in general. Some criminal codes may contain laws that deal directly with electoral fraud and corruption; examples are provisions regulating campaign financing, barring efforts to bribe voters, or limiting financial contributions to campaigns.

It is important to see that penal codes have provisions dealing with electoral law violations and that criminal offences do not go unpunished because of omissions in a code. This need was recognized in the recent electoral reforms in Mexico: a special prosecutor’s office was created, with responsibility for ensuring that the country’s penal codes cover criminal acts related to elections. [2]

Civil Rights Laws

Some countries have adopted civil rights laws to protect voter rights and prevent discrimination. Supplementing provisions that safeguard political rights, these laws target specific areas of discrimination, or arbitrary treatment of minorities or other groups by government or individuals.

In the United States, for example, Congress passed a series of civil rights acts 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; this banned restrictions that had been used to prevent electors belonging to certain minority groups from exercising their right to vote. [3]

NOTES

[1] Electoral Commission of New Zealand, Everything You Need to Know About Voting Under MMP, Wellington: GP Publications, 1996.

[2] Saldana, Agustin Ricoy, “Electoral Offenses (Mexico),” paper presented to the Third Annual Trilateral Conference on Electoral Systems, Washington, D.C., May 8-10, 1996, published by International Foundation for Election Systems, p. 10.

[3] Plano, Jack and Milton Greenburg, The American Political Dictionary, 8th edition, New York: Holt, Rinehart and Winston, 1989, p. 108.

Regulations

Regulations are sets of procedures and rules that institutions adopt to carry out the responsibilities given to them by the legal framework. Generally, executive agencies or ministries have the power to issue regulations without legislative action. The regulations describe how election administration operates.

Electoral policy and management bodies are authorized by the constitution or applicable electoral laws to issue electoral regulations. The regulations govern how elections should be conducted and how political parties competing in the elections should behave. Regulations, issued by these or other election-related bodies, also apply to other aspects of an election, such as the media, campaign financing and lobbyist registration.

For free and fair elections, regulations should follow the same principles of integrity found in the Principles and Guiding Principles. To be effective, regulations must be clear and equitable, and must minimize restrictions on the political freedoms of candidates and voters. Good regulations can help ensure a fair process, equality of opportunity and the accountability of all participants. Since regulations are issued by an agency, they are easier to change than legislation and provide electoral administrators with tools for dealing with integrity problems as they arise.

Regulations are similar to legislation. They authorize election officers to act with complete independence in performing certain tasks, but they also limit the officers’ freedom of action. It is necessary to monitor compliance with regulations and their enforcement. This helps ensure the accountability of election officers and others involved in administering the electoral process. The penalties and sanctions for non-compliance are usually set by the regulations. They may range from fines to imprisonment, depending on the offence.

Decrees

Some systems allow the government to issue decrees on electoral matters. Decrees are similar to regulations in that they are executive branch orders having the force of law. In Argentina, for example, a presidential decree in 1997 created a National Office of Public Ethics within the Office of the President. The office was mandated to develop national rules of public ethics and to monitor their enforcement. [1]

NOTES

[1] Office of the President, Official Bulletin, No. 28,590, 1st Section, February 20, 1997, Argentina.

Codes of Conduct

A code of conduct is usually a set of written rules that govern the conduct of public officials, such as election officers. Some electoral systems have codes of conduct for political parties, candidates and lobby groups. Codes are designed to prevent unethical behaviour; if binding, they can hold individuals and entities legally accountable for their actions.

A code of conduct can be a stand-alone document or part of broader legislation. For example, in the U.S. state of Wyoming, the Ethics and Disclosure Act is part of legislation on public service, and Wyoming public officials and election officers are required to comply with it. In South Africa, the code of conduct for election officers is a regulation designed specifically for elections.

Codes of conduct that are entrenched in legislation or regulations are enforced and may set sanctions and penalties for violations—for example, a fine, suspension from office or disqualification as a candidate. Violations of the code that involve criminal acts are referred to the criminal justice system.

In India, political parties and candidates are required to abide by a code of conduct that was issued by the Election Commission, based on a consensus of the political parties. The code sets out broad guidelines on how political parties and candidates should conduct themselves during a campaign:

It is intended to maintain the election campaign on healthy lines, avoid clashes and conflicts between political parties or their supporters and to ensure peace and order during the campaign period and thereafter, until the results are declared. The model code also prescribes guidelines for the ruling party, either at the Centre or in the State, to ensure that a level field is maintained and that no cause is given for any complaint that the ruling party has used its official position for the purposes of its election campaign. [1]

NOTES

[1] Election Commission of India, The Electoral System of India.