An EMB may be established by statute, through an act of the legislature. Countries like the UK, which has no written constitution, Australia, Burkina Faso, and Canada, established their respective EMBs entirely by statute law. It is generally good practice to lay down transparently the legislative framework for electoral processes, and clearly allocate the responsibility for filling in the gaps and/or detail through subsidiary legislation or regulation, or the EMB’s administrative procedures.

It is good practice for such legislation to define the status of the national EMB and any subsidiary EMBs, including accountabilities, powers, responsibilities, and functions. It is also good practice for it to provide a clear and sufficiently detailed framework to ensure effectiveness and integrity in all matters relating to electoral administration, such as:

• EMB member and staff appointments and tenure;
• operational management issues relating to voter registration, political party and candidate registration, political campaigns, voter education, EMB transparency, voting, vote counting, and announcement of results;
• financial and asset management issues; and
• electoral offences and manners of election dispute resolution.

Other issues which may be covered in electoral legislation include boundary delimitation principles and processes, and codes of conduct for EMB members and staff, political parties, the publicly-owned media, and election observers.

Parts of the legal framework may also be enacted as subsidiary legislation, for example:

• by the EMB itself under a power to make regulations;
• by some form of executive decree;
• by a state or provincial legislature in the form of subsidiary legislation;
• or by municipal authorities in the form of ordinances.

Provisions for the conduct of provincial and local elections are often contained in separate legislation. In federal countries, separately defined national and provincial electoral legal frameworks may be necessary, depending on the constitutional split of powers between the national and provincial levels. Inconsistencies or overlapping provisions between national and provincial electoral legislation, for example for voter registration or voting procedures, may confuse electors. Regular consultations between federal and provincial lawmakers and electoral administrators can assist in minimising confusion and duplication.

In addition, where elections to a supranational body are contemplated, national legislation is likely to be necessary to define the electoral management structure within the overall supranational agreement. Looking at the example of the European Parliament, the provisions contained in the European-level legal instruments are for the most part very general in nature, and the definition of the electoral management structure for European Parliament elections is left to each member state.

As with the balance between electoral provisions in the constitution and legislation, the balance between electoral provisions in legislation and subsidiary regulation or procedures needs to be finely judged. Electoral legislation needs to be sufficiently detailed to ensure integrity and effectiveness, but not so detailed that legislative amendment would be required to permit EMBs to deal with minor changes in their operations. Too much detail in the legislation can result in, for example, an EMB being unable to change the staffing structure in its divisions, or the design of an administrative form, or introduce office automation systems, without legislative change. Particularly in environments where election processes take place after legislatures’ terms of office have ended, electoral legislation needs to allow EMBs the flexibility to respond to changing electoral circumstances.

A modern electoral legislative scheme may entail one or several different laws. Traditional legal drafting for electoral legislation has often been precise but in a structure and language that is not very accessible. The legislation may become particularly difficult to understand if it is subject to successive amendments over time, without a fully revised and consolidated law being produced.

A single omnibus law covering all electoral activity can be cumbersome but may facilitate reference and review. Separate laws on individual issues – such as the EMB, political parties, electoral registers, legislative elections, presidential elections, and local government elections provide clear and easy reference to specific electoral activities, but it may be too time-consuming or difficult to ensure there is no conflict in their content. Another possible solution is that the substantive norms (such as suffrage rights, eligibility, number of rounds, majority or proportional system) are in separate laws (legislative elections, local elections, referendum) and the electoral process is regulated in a common law that consists of a general part (binding on all types of elections) and special norms for each type of election.

International IDEA’s publication International Electoral Standards: IDEA’s Guidelines for Reviewing the Legal Framework of Elections discusses a number of issues to consider when designing or reviewing a legal framework for electoral management. Key considerations are summarized in the following file.