The majority of EMBs have the powers to make rules, regulations and determinations that are binding on all players in the electoral process—voters, political parties and candidates, the media and observers—provided they are consistent with both the constitution and the electoral laws. These powers may be limited by law to specific aspects of the electoral process, or the law may give the EMB a general regulation-making power.
Some EMBs have executive, legislative and judicial powers. For example, the establishment of powerful EMBs was necessary to curtail the dominance of the executive over the other branches of government under the oligarchic governments of Latin America. In countries such as Costa Rica and Uruguay, EMBs became known as the fourth branch of government. These EMBs can make regulations, directions and reviews of regulations that are binding on the electoral processes, and their decisions cannot be reviewed by any other branch of government. They also have executive powers to call and conduct elections, to certify or nullify election results, and to resolve electoral disputes.
In other parts of the world, EMBs have some power to investigate and enforce laws related to the conduct of elections. The Bhutan EMB has the powers of a court, and the Thai EMB has the legal powers of a law enforcement agency. In Bosnia and Herzegovina and Liberia, the EMBs can compel anyone to appear before it during an investigation. In the Philippines and Russia, the EMB is obliged to carry out inquires in connection with complaints that the law has been breached. In Canada the EMB has the power to investigate possible breaches, but it usually delegates these to the police.
The Liberian, Mexican and Portuguese EMBs can impose fines. In Thailand, the EMB can indict those who break election laws. In Bosnia and Herzegovina the EMB can impose civil penalties for non-compliance, but must first seek to achieve compliance. The Canadian EMB can enter into a compliance agreement with any person who has committed or is about to commit an offence against the Elections Act. In Cambodia and South Africa, the EMBs have the power to investigate and resolve disputes of an administrative nature or disputes that do not necessarily fall within the courts’ jurisdiction. In many other countries (such as Australia, Bhutan, Tonga and Ukraine), the EMB refers any suspicions of a breach of electoral law to the police.
The majority of EMBs have powers that are primarily of an executive nature, related to implementing electoral activities. Many EMBs, such as Bhutan, Cambodia, Ghana, Liberia, Russia, South Africa, Thailand, Tonga and Zambia, can make binding regulations and prescribe penalties for their breach. Regulations issued by EMBs are subject to review by the courts, and they must be consistent with the electoral laws. In South Africa, such reviews are conducted by an electoral court.
In some countries the EMB’s powers extend to determining election dates, within parameters set by law that are often fixed to a time period defined by the end of an elected body’s term of office. In some countries with fixed terms of office for the legislature and executive, the EMB is responsible for formally determining the election date. In India, the EMB has the power to draw up an election schedule and issue the election writ. The Russian EMB can call an election if the legislature has failed to do so. Many EMBs have the power to order re-polling or re-counting if an election at a particular location has violated the law. For example, local government election commissions in Indonesia can order re-polling or re-counting in individual polling stations if processes have not been correctly followed, and the Namibian EMB can order a re-poll in the event of violence or an emergency. In some cases, such as in Bhutan, Thailand, Uruguay and Zambia, the EMBs have a broader power to order re-polling if an election did not proceed in a fair and honest manner as defined by law.
However, many EMBs have no influence over when an election is called. For example, in countries such as Mexico and the United States, which have presidential constitutions that stipulate the separation of legislative and executive powers, elections are held on a fixed date. However, in countries with parliamentary systems that follow the Westminster model, the government’s tenure depends on its ability to retain the support of a majority of members of the legislature. The power to call elections may belong either formally or in practice to the leader of the government, who can use it for political advantage. Even where the government has the power to nominate the election date, there have been cases, such as Nepal in 2007 and 2012, where the EMB has successfully postponed the election date that was initially announced by the government.
