Electoral Management

The Powers, Functions and Responsibilities of an EMB

There is often no clear distinction in electoral law or practice between the powers and functions of an EMB. In some electoral laws, all EMB activities sanctioned by law are referred to as powers. In many electoral laws, ‘powers and functions’ are referred to jointly and in others, as in Bosnia and Herzegovina, the law merely lists activities that the EMB ’shall’ perform. It could be argued that an EMB’s powers refer to those activities for which an EMB can make, of its own accord, rules, directions or determinations that affect rights and activities of others, such as making regulations, and determining electoral disputes. These may be reviewable by other bodies. An EMB’s functions could then be described as those activities in which it merely implements decisions – for example in training staff or informing voters. These may also be subject to external review.

EMB powers and functions are influenced by many factors.

The result of the negotiation processes among political forces, within the country or beyond, which paved the way for the EMB’s establishment, is generally a strong influence, particularly in countries recently emerging into democracy.

Other specific political, administrative, and geographic influences can include:

the structure of the state (e.g. unitary or federal, presidential or parliamentary),
demographics,
the electoral system (for example single or multi-member electoral districts),
and the existence of other electoral service providers.

The historical interaction of these factors within each country has created a wide variety of models for EMB powers and functions.

EMB Powers and Functions

The majority of EMBs have powers to make rules, regulations and determinations which are binding on all players in the electoral process: voters, political parties and candidates, the media and observers, provided such rules, regulations, and determinations are consistent with both the constitution and electoral laws.

There are some EMBs whose powers are executive, legislative, and judicial. 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 at the turn of the 20th century. 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 election disputes.

In other parts of the world, EMBs’ regulations are subject to review by the courts and must also be consistent with the electoral laws. Some EMBs have powers which combine executive powers with a greater or lesser degree of adjudicative power. For example, the EMBs in Cameroon, Romania, Papua New Guinea, and Philippines have powers to investigate and, where appropriate, prosecute violations of electoral laws. In Cambodia, the EMB has powers to investigate and resolve disputes of an administrative nature or disputes which do not necessarily fall within the jurisdiction of the courts.

The majority of EMBs have powers which are primarily of an executive nature, related to implementing electoral activities. The Yemen EMB can initiate secondary legislation, while in many countries, EMBs can make regulations or issue proclamations.

In some countries, these powers extend to determining the election date, 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.

Some examples of EMB powers:

In India and Pakistan, the EMB has the power to draw up an election schedule and issue the election writ.
In Russia, the EMB can call an election if the legislature has failed to do so.
In Yemen, the EMB has the power to call a by-election but not a general election.
In some cases, such as Thailand and Uruguay, the EMB has the power to order re-polling if an election did not proceed in an honest and fair manner as defined in the law.
Sub-district level committees of the Indonesian EMB can do likewise for individual polling stations.
The Namibian EMB can order a re-poll in the event of violence or an emergency.

However, many EMBs have no influence on when an election is called. In countries such as Mexico and the United States, elections are held on a fixed date, and in many countries following the Westminster Model, the power to call elections is vested in the leader of the government or the president of the state.

Extent of Powers and Functions

Particularly in emerging democracies, electoral legal frameworks are being designed to cover all electoral process matters relevant to the delivery of free and fair elections. This can have the advantage of promoting electoral integrity by ensuring that the EMB exercises controls that reflect its responsibility for the entire process. In many countries, the EMB is responsible for a wide range of activities throughout the electoral cycle.

Apart from the essential (or core) powers and functions of:

determination of who is eligible to vote;
determination of political parties and/or candidates eligible to contest an election;
organisation and conduct of polling;
counting of votes;
aggregation of votes;

other EMB activities may include:

making national or regional electoral policies;
planning of electoral services;
training of electoral staff;
conduct of voter information/education and civic education;
delimitation of electoral district boundaries;
electoral logistics;
identification and registration of voters;
development and maintenance of a national voters register;
registration of political parties;
regulation of financing of political parties;
political party pre-selections or primaries;
regulation of the conduct of political parties and candidates;
regulation of the conduct of the media during elections;
regulation of opinion surveys;
training of political parties’ and candidates’ poll watchers;
accreditation and regulation of the conduct of election observers;
announcement and certification of election results;
adjudication of electoral disputes;
reviews and evaluations of electoral framework adequacy and EMB performance.
advising the government and legislature on electoral reform issues;
participating in international electoral assistance services, including observation missions in neighbouring countries.

Responsibility for Voter Registration

Voter registration is sometimes required by the electoral legal framework to be attached to a national identification or civil registration system, which is controlled by an authority other than the EMB. In these cases, the voter registration made by an authority other than the EMB is a purely administrative action. If there is any dispute (for example, if someone is alleged to be registered without being eligible for suffrage, or has allegedly been wrongly omitted from the voters register), the EMB has to determine voter eligibility, and not the civil registration authority. In other countries, a body other than the EMB is responsible in electoral law to develop and compile the electoral register.

However the voters register is compiled, the basic concern is that the data contained in it must be accurate and credible. Implementation of voter registration by an Independent Model EMB may result in more publicly credible voters registers than if they were derived from or compiled by a government department, even though using existing civil registration or ID system data may be more cost-effective. Whatever institution prepares voter register data, the EMB must verify that voters registers for use at polling stations are accurate.

In Peru, the electoral framework gives the EMB responsibility for issuing national identification documents and voter registration cards. This has worked well and has made the task of compiling and maintaining the electoral register a lot easier for the EMB. Quality control measures on voter registration, such as opportunities for public inspection by voters, are commonly embedded in electoral laws. In many developed countries where (electronic) population registers exist, the EMB regularly compares its voter registration records against the population register to identify unqualified or ‘phantom’ voters for removal.

Responsibility for the Registration and Funding of Political Parties

The registration of political parties, supervision of the contributions they receive and/or their expenditure, and disbursement of any public funding for parties and candidates, also sometimes fall outside the functions given to the EMB by the electoral legal framework. Political party registration can fall under i.e. a Ministry or the county courts, and political party funding and expenditures may be controlled by an agency other than the EMB. In countries such as Fiji, Russia, and Thailand, the EMB administers political party registration, funding, and disclosure provisions, and also serves as the guardian of political party symbols and independent candidates’ logos. In some countries, the EMB is responsible for auditing the accounts of political parties.

Election Campaign Responsibilities

Political party and candidate campaign codes of conduct may be included in the legal framework or be an EMB-brokered voluntary arrangement between parties. These codes are more effective if they have voluntary agreement from parties, but benefit from the EMB or election dispute resolution bodies being legally empowered to impose sanctions for breaches.

Several EMBs have a mandate in the electoral legal framework to regulate political parties’ campaign methods and conduct in general. Other EMBs have a role in regulating media allocations for party campaigns, or regulate the allocation of public media air time to parties and candidates. In Canada, the EMB appoints a broadcasting arbitrator to allocate paid and free time to registered political parties on the electronic broadcasting networks.

Elements of election campaigns that are not directly related to political party activities are also under the jurisdiction of some EMBs. For example, electoral law in countries such as Bosnia and Herzegovina and Russia regulates the publication of political opinion polling. Jurisdiction over this and other issues relevant to the media’s treatment of election ’news’ is more commonly left either to self-regulation or to a media council.

Voter Education Responsibilities

Voter education is a responsibility which is increasingly being added to EMB functions. Some EMB legal frameworks have clearly provided for the EMB to conduct voter education, while others have not. It is preferable that an EMB’s legal framework includes a voter education function, as this is indispensable for democratic consolidation especially in emerging democracies where both the art and the essence of voting are yet to be mastered and internalized. However, it would be harmful for the EMB or any other body to be given exclusive voter education rights or powers to restrict who may conduct voter education.

One cogent reason why the legal framework should empower the EMB to conduct voter education as a way of consolidating democracy is that otherwise, the government will be reluctant to fund voter education, citing as the reason that this function is not part of the EMB’s official mandate.

Voter education is too important, and its implementation too complex, to leave to the EMB alone

political parties,
civil society,
corporations, and
government agencies such as education systems

may all have an important complementary role to play to help ensure that voters have all the information they need to make informed choices.

An EMB’s voter education responsibilities could be partially or wholly delegated to other institutions, including civil society. In Ghana, for example, there is a sister commission to the EMB which is responsible for civic and voter education, and in Thailand, the EMB is empowered to outsource voter education to private organisations

Validation of Election Results

It is common for electoral legal frameworks to give the function of certifying and announcing election results to the EMB, and to prescribe a time period within which the results must be announced. In a few cases, these functions are given to the Constitutional Court, or a Constitutional Council. In Denmark, the legislature is responsible for validating the results of national elections.

The Chief Justice of Zambia is the returning officer for the presidential election and is thus responsible for announcing its results. The National Technical Committee on Elections which was set up following the 2001 general elections recommended that the EMB take over the function of returning officer for the presidential election.

Supervision of Political Party Candidate Selections

It is not a common practice for the EMB to assume responsibility for parties’ selections of candidates, but the increasing pressure for internal party democratization has caused some election analysts to support this role for the EMB. Many EMBs in the US are involved in running primary elections for party candidates for elected offices. The EMB in the Australian state of Queensland has powers to conduct inquiries and audits of pre-selection or primaries of candidates for state and local elections. In Indonesia, Kenya, and Nigeria, candidates are required by law to submit to the EMB the minutes of the meetings where they were selected as candidates for a particular election.

Responsibility for Boundary Delimitation

It is common in many countries, especially those which follow the Commonwealth tradition, for the electoral legal framework to create a separate body or commission to assume responsibility for boundary delimitation. Such countries include Australia, Botswana, Canada, and India. Countries where the EMB takes responsibility for boundary delimitation include Barbados, Belize, Costa Rica, Georgia, Indonesia, Nigeria, Uganda, and Yemen. There are countries such as the United States in which the electoral law assigns boundary delimitation to the legislature. However, this practice can easily lead to the imposition of electoral district boundaries that are favourable to the current majority party in the legislature, thus institutionalizing a hold on power.

There are operational and cost-effectiveness advantages in the EMB taking responsibility for electoral district boundary delimitation. Boundary delimitation is, however, a politically divisive issue, and leaves an EMB open to attack by those who perceive their interests are not served by its results. Some electoral analysts therefore argue that boundary delimitation is best handled by a body other than the EMB, to shield it from potential politically motivated attacks that may damage the EMB’s credibility.

Electoral Observation Responsibilities

While independent election observation, by its nature, is conducted outside the control of the EMB, electoral legal frameworks often give EMBs functions related to observation. It is good practice for an EMB to accredit observers, guarantee their rights of observation, provide them with accreditation credentials and comprehensive background briefing materials, and define observers’ responsibilities, often in a legally enforceable code of conduct. Independent observation, especially in emerging democracies, can be a critical component of building public confidence in electoral processes.

Independent observation, by both domestic and international observers, by its nature must be free of control and interference by the EMB or any other authority, except those controls necessary to ensure observers’ authenticity, impartiality, and safety and to prevent disruption of electoral processes. Just as electoral laws take note of a country’s international treaty obligations, so too an EMB’s powers and functions in relation to observers need to recognize international standards – such as the United Nations-endorsed Global Declaration of Principles and Code of Conduct for International Electoral Observation from 2005. Attempts to place impediments in the way of observation – such as charging a high fee for registration of each observer, or to over-regulate observation, such as the requirement in Indonesian electoral law that observers report all observation results to the EMB before publicly announcing them - may be seen as contrary to international standards.

International Activities

Although many EMB legal frameworks do not provide for participation in international electoral assistance missions, many EMBs do undertake these tasks on both a small and a large scale. EMBs which regularly participate in international technical cooperation include those of Australia, Canada, France, Ghana, India, Mexico, South Africa, and the UK, and such cooperation is both bilateral and multilateral. Many other EMBs regularly participate in international observation missions, particularly in neighbouring countries, or in professional contact and exchange activities facilitated by regional networks of election officials. The mandate of the Bangladesh EMB provides for EMB ‘support to the United Nations and its member states in organising elections by fielding of election monitors and observers and organising training for electoral personnel’. It is important that the legal framework for elections provide a mandate for the EMB to participate in international electoral activities. No EMB or country is an island unto itself and many EMBs are called on from time to time to render assistance to other EMBs, either as observers or technical advisors, or to host study missions from other EMBs.

Community Responsibilities of EMBs

Electoral legislation in some countries not only defines the powers and functions of the EMB, but also its responsibilities, or ‘obligations’. These would often include accountability measures, such as the requirement for audit or reporting on its activities to an external body such as the legislature.

The EMB's responsibilities may also include more normative elements of how it is expected to behave, which may be further elaborated in the EMB's code of conduct. Electoral legislation in Indonesia includes obligations on the EMB to provide a good service to all election participants and treat them fairly, determine and implement quality standards for election materials, maintain comprehensive electoral archives, inform the public fully of its activities, be accountable for its funding, and report to the president on the conduct of each election.

Even where not defined in the electoral legal framework, EMBs as upholders of democratic values have behavioural and access responsibilities to the community which they serve.

Some of these responsibilities relate to

the probity and integrity of electoral management,
others to issues such as transparency,
gender balance,
sensitivity to customs and traditions,
treatment of ethnicity,
providing electoral access to marginalised groups, and
creating electoral conditions conducive to fair competition.

EMBs have overarching obligations to adopt good practice, so that their levels of integrity promote free and fair elections, their efficiency ensures that public funds are not wasted, and their service standards meet with public approval. If the best practice in election organisation could be easily identified, it would be the goal that electoral management bodies would strive to achieve. It is perhaps more realistic to aim to achieve targeted elements of good practice: this has the potential to straddle the barriers of the differences in electoral systems, and still achieve the delivery of free and fair elections.

Avoidance of Conflicts of Interest

EMBs make decisions involving the fast and effective spending of large budgets. High-value individual supply agreements – for items such as ballot boxes, ballot papers, and computer equipment – can be of huge benefit to the winning supplier. Connections between EMB members or staff, and suppliers, other election participants, and stakeholders who can gain benefit from EMB decisions can lead to perceptions of conflict of interest, damaging to the EMBs public credibility, or real conflicts of interest damaging to its integrity. General public service legislation may cover these issues in relation to public servants serving in EMBs. In Hungary, the law on public procurement, which deals with conflicts of interest, applies to the electoral process as well.

Conflict of interest provisions could be included in legislation or EMB regulations, and can be part of an enforceable code of conduct for EMB members and staff. They would usually specify that EMB members and staff who have an interest or potential interest in a matter that comes before the EMB for consideration and decision, should notify the EMB of their interest in a timely manner and refrain from participation in the consideration of that matter. To be effective, realistic enforceable sanctions for breaches of conflict of interest provisions are necessary, such as dismissal from the EMB or other disciplinary action.

The same is true of EMB members’ and staff contacts with or links to political parties and candidates. Such contacts or links should be disclosed in a timely manner and refrain from participation in making any decision that might benefit the relevant parties or candidates.

Gender Balance Responsibilities

EMBs have a responsibility to ensure that in their internal and external activities they reflect the gender composition of society. Elements of this responsibility may be defined in electoral law, such as ensuring that political parties nominate at least the specified levels of women candidates as required by law. Some may be taken on by the EMB as a social campaign, such as the EMB in Indonesia in 2004 returning party candidate lists for reconsideration where they did not meet the recommended (but not enforceable) 30 per cent women candidate quota. It is good practice for EMBs to promote equity by advocating that gender balance measures be included in electoral legislation, and by including such measures in their own regulations or codes of conduct.

Ensuring that there is gender balance in its own personnel and activities, whether or not required by electoral legislation or government policy, will promote EMB credibility and allow it to fully tap available resources for its membership, professional and support staff, permanent and temporary or ad hoc staff, consultants, and advisers. For example, in 2004, two of the five EMB members in Cambodia were women, as were two of the five members in Jamaica, five of the nine members in Latvia, and two of the five members in South Africa. It is equally important to ensure that women are represented fully throughout all levels of the EMB secretariat, and in its temporary election staff – as polling station managers, as well as polling station staff. The EMB needs to provide a good example on gender balance issues in all its activities. Some essential considerations are ensuring gender balance in the invitees and participants at workshops and seminars organized by the EMB, and the inclusion of gender-based issues in training and voter education programme content. This not only promotes the participation of women in political life, but enables the EMB to communicate more effectively with and respond to the needs of all of society.

Account of Ethnicity Issues

Ethnicity and diversity have become important factors in the organisation of multiparty democratic elections, especially in many emerging democratic societies, such as in Bosnia and Herzegovina. In some countries, this has had an effect on public expectations of the EMB. Many stakeholders in elections in Nigeria have expressed strong views that the electoral system in that country should be reviewed to take full account of the ethnicity (diversity) issues that give rise to frequent regional and local conflicts. Through a selection and appointment of its members and senior staff that considers ethnic, regional, and linguistic balance, the EMB can convey a positive signal about the inclusiveness of the EMB’s management. This approach is more likely to gain the confidence and support of all ethnic groups for the EMB’s credibility and even-handedness, with positive effects on the eventual acceptance of election results.

Equality and Equity

The quality of non-partisanship and the ability to create a ‘level playing field’ for political participants are pillars on which an EMB can build good practice electoral management. A lack of electoral equity – for example, an electoral environment which is tilted in favour of the governing party - can undermine free and fair elections and the credibility of the EMB. While some of the factors and practices which contribute to electoral equity may lie outside the strict ambit of the EMB’s powers and functions, EMBs can work to ensure that the legal framework is fully utilised to promote equality and equity.

Some emerging democracies find the concept of ‘a level playing field’ unfamiliar. Countries influenced by Westminster models of government, or where the public service and state media have been required to have strict political loyalty to the ruling party, have traditions of electoral advantages lying with the government. Such advantages could be in the power to determine an election date without consultation, in the use of public resources for campaign activities, and in favourable access for the ruling party to the media.

In some countries, electoral law for transitional elections has attempted to even out the playing field by strictly controlling and limiting media advertising by the political contestants, requiring all campaign activities to be allocated equally by the EMB to each contestant, and forbidding the use of public resources for election campaigns.

The use of public resources for election campaigns is a challenge to EMBs in all countries. This is an area that is rarely covered in electoral legislation itself, although there are a few exceptions. Some EMBs, such as those of Bangladesh and India, have issued a code of conduct to govern the electoral use of public resources by ministers of government.

Broadly-based Access

Electoral law and public pressure are increasingly requiring EMBs to provide services to ensure that all eligible electors have genuine access to the electoral process. For example, the 2002 International Bill of Electoral Rights for People With Disabilities promotes equal rights of access to all electoral processes for people with disabilities. All access-extending services are costly, and need to be considered by the EMB and legislators in relation to its budgetary constraints.

Voters' special access needs may include:

mobile registration and voting facilities for those in hospital, confined to the home or in prison;
out of country voting;
provision of voter registration and voting facilities for internally displaced persons, and in locations outside the country for significant refugee populations (as has been implemented for elections in countries such as Afghanistan, Iraq, Liberia and Sierra Leone);
facilities for voting by post or before election day;
ensuring that registration, polling stations, and equipment are accessible to voters with disabilities;
providing electoral information materials suitable for those with visual or aural disabilities and providing registration or voting assistance to them where needed; and
providing voting equipment such as ballot paper templates for the visually impaired (as in Canada).

EMB processes may also adopt preferential treatment for pregnant women, nursing mothers, the elderly, and people living with disability, especially during voter registration and polling.

Partnerships with civil society organisations or relevant government instrumentalities will assist the EMB in identifying the precise needs and may even help defray costs of providing access to marginalized groups.

The legal framework or EMB’s policies on electoral access may be informed or constrained by customary rules or traditions. These may relate to issues such as who may nominate candidates for particular offices, or the need to establish separate voting queues or locations for men and women. Other issues where custom or tradition may impinge on access (and electoral integrity) include the photographing of women for electoral ID cards, voting methods, and the use of visible indelible ink to mark voters. Where customary laws are deeply entrenched, the EMB can enhance its acceptance throughout society if its structures, policies, and procedures demonstrate respect for such customary practices, especially if this will not contradict EMB laws and policies or hinder its activities.

Direct Democracy Instruments

The conduct of electoral direct democracy instruments – referendums, citizens’ initiatives, and recall votes – raises issues which are for the most part similar to those raised by the conduct of elections. Additional issues may include the phrasing of the question(s) put to voters, verification of correct use of processes to call direct democracy votes – a contentious issue, for example, in Venezuela’s presidential recall vote in 2004 - and the regulation of campaigning and voter education. In the US state of Oregon, the EMB is required to distribute to every household, a collection of the position statements submitted by citizens on each issue submitted to referendum. It is usual for EMBs to be responsible for the organisation both of elections and of direct democracy instruments.

Functional Divisions between Electoral Institutions

It is common for some of the non-core potential functions, such as managing electoral logistics and training of electoral staff, of an EMB to be assigned in the electoral legal framework to another institution. It is also becoming more common for some non-core functions to be contracted out by an EMB – but this is a management, rather than a legal framework, issue. Functions that are often assigned in the legal framework to an institution separate from the EMB include boundary delimitation, voter registration, the registration and funding of political parties, electoral dispute resolution, the certification and announcement of election results, and voter education. If electoral functions are assigned to more than one institution, the legal and policy framework needs to be very clear on each institution’s functional responsibilities.

Summary:The Powers, Functions and Responsibilities of an EMB

An EMB’s powers and functions may not be separately identified in its legal framework, and, apart from the essential elements of an EMB, can cover a greater or lesser variety of tasks, depending on factors such as the structure of the state, the electoral system and the number and type of organisations that provide electoral services.
EMB core powers and functions (essential features) are:
- determination of who is eligible to vote;
- determination of political parties and/or candidates
- eligible to contest an election;
- organisation and conduct of polling;
- counting of votes;
- aggregation of votes;
Most EMBs have powers and functions which are ‘executive’ - relating to the implementation of elections; some have adjudicative and a very few have legislative powers. Most EMBs’ activities are reviewable by judicial or other bodies.
There may be advantages and disadvantages, which need to be carefully assessed, of assigning some electoral activities, such as boundary delimitation, compiling of data for voters registers, registration and funding of political parties, monitoring of political campaigns, voter education, and validation of election results, to be implemented by specialist bodes other than the EMB.
EMBs have behavioural and access responsibilities to the communities they serve, which may extend beyond the minimum requirements of the electoral legal framework. These include promoting gender balance within the EMB itself and in political life, dealing fairly with issues of ethnicity, promoting equality and equity in electoral contests, providing equality of access to electoral services for all, and especially marginalized, members of society, and recognizing customary practices where these are in harmony with electoral management principles.
The electoral legal framework and EMB policies can assist in guarding against inappropriate behaviour by EMBs by including provisions requiring that members and staff of EMBs avoid situations of conflict of interest.

ACE Electoral Knowledge Network

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