A growing number of countries are incorporating fundamental electoral provisions in their constitutions, often including the specification of the EMB. Countries like Bangladesh, Costa Rica, Fiji, Ghana, India, Indonesia, and Uruguay set up their respective EMBs as constitutional bodies. This makes the altering of the EMB’s status and other constitutionally defined elements more difficult. Constitutional provisions are almost always more entrenched than mere laws, requiring for example an extraordinary majority in the legislature or a referendum to change them. The barrier that constitutional entrenchment imposes on ruling parties which wish to change electoral provisions to their advantage gives opposition parties a feeling of greater protection than if those provisions were contained in statutory law, which can be altered by a majority in the legislature, or in government regulations.

Some electoral provisions whose principles are often included in constitutions include:

• EMB independence;
• EMB composition;
• EMB term of office;
• EMB powers and functions;
• suffrage rights or voter registration qualifications;
• political party rights;
• boundary delimitation authority or parameters;
• presidential election systems;
• national legislative election systems;
• candidacy rights or qualifications;
• election schedule / date deadline; and
• mechanisms for settling of electoral disputes.

The range and nature of electoral-related provisions which are considered appropriate to be set out in a country’s constitution varies widely according to local considerations. Some examples follow.

• Austria’s Constitution sets out EMB membership, the franchise, the Constitutional Court’s role in election disputes, and the election system;
• the Constitution of Bangladesh defines the powers, independence, and functions of the EMB, the franchise, candidate qualifications, and election date deadline;
• Cameroon’s Constitution deals with political party rights, candidate qualifications, election date deadlines, and the powers of the Supreme Court and Constitutional Council relating to electoral disputes;
• in Costa Rica, the Constitution establishes the independence, membership, and functions of the EMB, and deals with the franchise, political party rights (including government funding), election systems, and qualifications for candidacy;
• for elections in the Czech Republic, the Constitution defines the franchise, the election system, and election date deadline;
• Ghana’s Constitution deals with the franchise, establishment of the EMB, the right to form or to join a political party, and the delimitation of electoral districts;
• in India, the Constitution has provisions establishing an EMB, dealing with the franchise, the electoral register, barring the interference of the courts in electoral matters, and reserving seats for legally defined “Castes” and “Tribes” in the House of the People;
• Madagascar’s Constitution sets out candidacy rights, the election systems for the senate and the presidency, and the Constitutional Court’s role in elections and election disputes;
• the Namibian Constitution enunciates the qualifications and procedures for presidential elections;
• Peru’s Constitution deals with the autonomy, membership, and functions of the National Elections Board, which supervises election processes, and is responsible for party registration, the announcement of the results, and electoral dispute resolution. The Constitution also empowers the National Office of Electoral Processes to organize materials and logistics, funding, and vote count information for all electoral events, and sets out the qualifications for its chief executive; and empowers the National Registry of Identification and Civil Status to create the voters register from its civil registry database.

Similarly-targeted electoral provisions in constitutions may also be drafted in very different ways. Consider the following two examples of constitutionally defined ‘independence’ of an EMB:

"Except as provided for in this Constitution or any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any authority or person" – article 46 of the Constitution of Ghana.

"General elections shall be organized by a general election commission of a national, permanent, and independent character" – article 22E(5) of the Indonesian Constitution.

While enshrining major electoral provisions in the constitution generates confidence in the electoral system, there may be disadvantages if these provisions are too detailed. The legal framework may then be difficult to change in the light of experience because of the difficulty in meeting constitutional change barriers or the length of time it takes to effect constitutional change.

The extent to which electoral provisions are incorporated in the constitution is significantly affected by the level of public trust in the election administration of the country. In many established democracies where a high level public trust exists in law-making and public administration in general, and the organisation of elections in particular, constitutions do not make reference to EMB design issues. Yet it is common – and not only among fledgling democracies – to have independent and robust EMBs which are supported by sophisticated and detailed legal frameworks which incorporate key electoral provisions in the constitution. This practice fosters stakeholder confidence in the electoral process.