An EMB may be established by statute, through an act of the legislature. For example, Australia, Burkina Faso and Canada established their respective EMBs entirely by statute law. It is unusual for governmental EMBs to be defined specifically in law; tasks are more frequently allocated to government agencies in an electoral law. However, in the UK (see the case study), which has no written constitution, the Electoral Commission—the EMB for referendums—is defined in statute law.
It is generally good practice when drafting such electoral statutes:
- to transparently lay down the legislative framework for electoral processes and clearly allocate the responsibility for filling in the gaps and/or details through secondary legislation, regulations or EMB administrative procedures;
- to define the status of the national EMB(s) and any subsidiary EMBs, including their accountability, powers, responsibilities and functions; and
- for legislation 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 related to voter registration, political party and candidate registration, political campaigns, and voter education and information; EMB transparency; voting, vote counting and the announcement of results; financial and asset management issues; and electoral offences and resolving electoral disputes.
Other issues that may be covered in electoral legislation include boundary delimitation principles and processes, and codes of conduct for EMB members and staff, political parties, publicly-owned media and election observers.
Parts of the legal framework may also be enacted as secondary legislation, for example, by an EMB with the power to make regulations by some form of execu- tive decree; by a state or provincial legislature in the form of secondary legislation in a federal country; 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, national and provincial electoral legal frameworks may need to be separately defined, 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 help minimize 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 in legislation, the balance between electoral provisions in legislation and subsidiary regulations or procedures needs to be carefully judged. Electoral legislation needs to be detailed enough 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 its staffing structure or the design of an administrative form, or to introduce office automation systems without a change to the law. 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 are 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—as in Indonesia, for example, such as the EMB, political parties, electoral registers, elections to the legislature, 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 that there are no conflicts of content between them. Another possible solution (as in Hungary) is that the substantive norms (such as suffrage rights, eligibility, number of election rounds and the electoral system) are embodied in separate laws (on elections to the legislature, local elections and referendums), while 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 Obligations for Elections: Guidelines for Legal Frameworks discusses a number of issues to consider when designing or reviewing a legal framework for electoral management. Key considerations are summarized in Box 1.
