Constitutions are basic
statements of a nation and are often subject to formal deliberation and a
significant amendment process. This
helps to entrench the bedrock for genuine and periodic democratic elections. However, the relative permanence of a
constitution also implies that, “In order to allow for necessary flexibility,
provisions related to the management of elections should be incorporated into
parliamentary legislation, and administrative and procedural matters should be
left to administrative rules and regulations.”[i]
Electoral law is the legal
instrument used to develop the majority of electoral topics that are relevant
for a nation (especially in the case of those nations following the so-called
civil law tradition). Electoral laws are enacted by ordinary legislators
(legislative branches of government, chambers, congresses, assemblies,
parliaments) in order to develop the general principles established by the
Constitution.
Often, since electoral systems have to be legitimate, strong and permanent
electoral laws have to be enacted by at least a two-thirds majority of congressional
members.
There is neither a model to follow in order to enact electoral laws, nor a
recipe to follow regarding their contents and structure. In some countries, for
instance, electoral laws are contained in a single piece of legislation (code or
statute), while in others, many codes or statutes contain electoral rules in a
specific way (in such cases, there are specific codes to regulate electoral
authorities, political parties, systems of appeals, and so on).
Whatever the intent to create
a single election law, in great likelihood, “An election law neither can nor should
contain all regulations relevant to the election process. The election process
will require involvement of institutions and procedures that are based on other
parts of the national legal system.”[ii] Among other matters, related legislation may
be expected to include statues providing for mass communication media,
non-governmental organizations, the civil service, refugees and displaced
persons, citizenship, military, use of state resource, access to information
and civil and criminal codes and procedures.[iii]
Under the Constitution, electoral laws can regulate electoral topics including
the following:
- The nature of representative offices, including
seat allocation and term of office
- Individual rights to
vote, to be voted, to associate freely with others and to affiliate to
political parties
- Characteristics of the
voting system
- Conditions that must be
addressed by candidates to be elected
- Legal requirements for
political parties (such as the requirements that they have to
fulfill to be registered, members’ rights and duties, funding, coalitions,
and so on)
- Electoral authorities’
main features (such as their structure, organization and powers)
- Geography and elections
- Registry of voters
- Voter education
- Electoral process
(campaigning, election day, counting, and electoral results)
- Electoral
planning
- Elections
and the media
- Electoral integrity
- Disciplinary measures;
system of appeals
- Electoral courts
Countries that have constitutional tribunals can also authorize electoral
laws to be challenged on constitutional grounds. The highest court of the
nation will be empowered to decide on such disputes.
Drafting electoral laws is a critical undertaking
and should take care to use plain language where possible and avoid conflicting
references, Usually, major changes to electoral laws cannot be undertaken if
the electoral process is about to begin. Such a prohibition aims at preserving
political stability and legal certainty. Once adopted, election legislation should be
made widely known. In short, as the UN Report,
Women
and Elections, stresses, “The
election law should be clear,
comprehensive and transparent.”
[iv]Electoral laws cannot be enacted to detail
electoral regulation related to specific, concrete, administrative or internal
issues of electoral authorities. Such regulation must be contained in other
normative devices such as executive orders.
[i] International IDEA, International Electoral Standards, 14.
[iii] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections,
8.
[iv] UN, Women &
Elections, 22.
