A growing number of countries are incorporating fundamental electoral provisions in their constitutions, often including the type, composition and responsibilities of the EMB. Countries such as Bangladesh, Costa Rica, Ghana, India, Indonesia, South Africa and Uruguay have set up their respective EMBs as constitutional bodies, which makes it more difficult to alter their status and other constitutionally defined elements. Constitutional provisions are almost always more entrenched than mere laws; constitutional amendments require, for example, a qualified majority in the legislature or a referendum. The barrier that constitutional entrenchment presents to ruling parties that wish to change electoral provisions to their advantage gives opposition parties a sense of greater protection than they would have if those provisions were contained in government regulations or statute law, which can be altered by a majority in the legislature.
The range and nature of electoral provisions that are considered appropriate to be set out in a country’s constitution vary widely according to local considerations.
- Austria’s constitution defines EMB membership, franchise, the Constitutional Court’s role in electoral disputes and the electoral system.
- The constitution of Bangladesh defines the powers, independence and functions of the EMB, the franchise, candidate qualifications, and the maximum period between elections.
- Cameroon’s constitution specifies political party rights, candidate qualifications, the intervals at which elections must be held, and the powers of the Supreme Court and Constitutional Council related 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), electoral systems and qualifications for candidacy.
- For elections in the Czech Republic, the constitution defines the franchise, the electoral system and the maximum period between elections.
- Ghana’s constitution deals with the franchise, the establishment of the EMB, the right to form or join a political party, and the delimitation of electoral districts.
- In India, the constitution has provisions establishing an EMB and addresses the franchise and electoral register, barring court interference 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 electoral systems for the senate and 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 Tribunal, which supervises electoral processes and is responsible for party registration, announcement of results and electoral dispute resolution. The constitution also empowers the National Office for Electoral Processes to organize materials and logistics, funding and vote count information for all electoral events; sets out the qualifications for its chief executive; and empowers the National Registry of Identification and Civil Status to create the electoral register from its civil registry database.
- The constitution of Romania sets out the citizens’ right to elect and be elected, and requires an organic law to regulate the establishment and functioning of the Permanent Electoral Authority.
Similarly targeted electoral provisions in constitutions may also be drafted in very different ways. Consider the following two examples of constitutionally defined EMB "independence":
"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 practice because it is difficult to satisfy the conditions for amending the constitution, or due to the length of time it takes to amend the constitution.
The extent to which electoral provisions are incorporated into the constitution is significantly affected by the level of public trust in the country’s election administration. In many established democracies with a high level of public trust in lawmaking and public administration in general, and the organization of elections in particular, constitutions do not make provision for the design of the EMB. Yet it is common—and not only among fledgling democracies—to have independent and robust EMBs that are supported by sophisticated and detailed legal frameworks that incorporate key electoral provisions in the constitution. The authority and clarity of the constitution foster stakeholder confidence in the electoral process.
