Basic Alternatives

During the current status of the democratic system development, the different choices of the electoral system are not the only basic alternatives in hand of whom are in charge of designing an electoral law.

Also can be considered:

• electoral constituency election;
• electoral system determination;
• whether it should exist or not an electoral barrier;
• the concrete way of expression of the vote.

Additionally, indirect elections and semi-direct instruments are admissible as options; however, those limitations to the vote, tending to particularize it instead of been universal, as well as non-competitive unipartidist elections, should not be welcomed.

On the other hand, it is important to notice that even taking into account that the juridical tradition over which the legal framework is developed, does not depends on the design of the own framework, and therefore it should not be classified as a basic alternative, its location in this topic is due to its contextual importance.

Sub-sections of this chapter:

• Different Legal Traditions
• Political and Governmental Systems
• Legal Instruments
• Creation and Amendment Process
  

Different Legal Traditions

There are certain general categories which outstand from the different legal systems in each country or time. They are shared by a certain group or whole of systems and this makes it possible to identify different legal families. In other terms, from the legal tradition in which each legal system is affiliated we can speak of a legal family. However, a national legal system can belong to a determined legal family and, simultaneously, at the local or “communitary” jurisdiction, a diverse legal system belonging to a different legal tradition can exist.

Canada is an example of this situation: its national system belongs to the common law tradition, while the Québec’s province system belongs to the Civil Law tradition. Another example can be found among the different Latin American countries with indigenous population, whose national systems belong to the Civil Law family and, simultaneously, in more reduced territorial jurisdictions, the so called indigenous consuetudinary law is applied in electoral matters as well. 

Indeed, there are several legal families derived from a common origin or past, from similar institutions, from a language code or shared concepts, from the similarity of the sources of the law, from the community of proceedings and the methods or techniques used by jurists, as well as from the similar philosophical, economical or political principles which inform each legal system. 

Knowing the family in which each national legal system belongs to is useful to widen the perspective of the institution or the electoral process subject to analysis, as well as to obtain a more informed and reliable approximation and to comprehend the differences between each legal system. 

Since the study must take into account the family which the system belong to and consider its cultural, economical, political and social contexts, the translation of terminology shall not lack of any criticism or be automatic, whether it is to disqualify a certain legal system or not, when studying, explaining or comprehending a certain country’s or countries’ electoral institutions, instruments, or processes.  

The Roman-Germanic, Roman-Canonic, or civil law families, have their origins in Roman Law (the Twelve Tables, Corpus Iuris Civile, and Corpus Iuris Canonici) and was decisively influenced by Canonic Law. Also, it was enriched with the contributions of commentators and “post-commentators”, and the work of the Latin-Germanic universities’ jurists. This way the so-called ius commune was formed. Later through codification processes, from which several civil, commerce, criminal or procedural codes were made, passed to the conformation of national laws arriving in the creation of the constitutions. In such family, the development of civil laws and the codification of legal dispositions based on justice and equity was favored. Including the Scandinavian region, Latin America, and several African countries who where Continental Europe’s colonies, the different legal systems of several Continental European nations fundamentally belong to this legal family. 

During the XI century, in England appeared the common law family. This legal tradition has had a wide diffusion in the majority of the English-speaking countries. It is characterized by the creation of legal dispositions coming from the judicial resolutions. In other terms, the system follows the judicial precedent through which a particular case receives the same legal solution given to a previous and similar case. Therefore, opposite to the families that favor legislative creation, the law is a product of the judges’ labor. Basically, the United Kingdome’s, United States’, some African, American and Oceanic nations’ belonging to the Commonwealth legal system is embraced by this legal family. Most of them enforce English Law and recognizes the monarch of the United Kingdom as Head of State.

Since they do not share a common juridical tradition, the religious systems do not constitute a legal family. The only adhesive feature is the religious or philosophical nature of its law, where law and religion are practically synonyms. In the different systems belonging to this tradition, the applicability of this mixture of conduct rules is restricted to certain subjects, such as in Hindu or Brahmanic law, observed in wide regions of India, or Hebrew law, kept by Orthodox Jewish communities spread through many countries.

 However, there is a large amount of countries whose citizens’ great majority practice the Islamic religion and effectively share legal culture and tradition; therefore it is possible to agglutinate them in the Islamic family. Every area of the law is ruled by the sanction of the State. Its origin goes up to the VII century, time in which Mohamed wrote the Koran, the book where the dogmas and precepts that rule de social and religious organizations of the Islamic people (basically located in Northern Africa, the Middle East, Central Asia and Northern Oceania) are contained

Political and Governmental Systems

The legal design, reform, and implementation of an electoral system, whether it is supranational or regional (European Union or Central American Parliament), national (of each country), state, autonomous, departmental, municipal, cantonal, or of a county, cannot disregard the cultural, economic, legal, social, and political reality or context in which the electoral processes and institutions are inserted, not even popular idiosyncrasy. In other words, the application and interpretation of constitutional, legal, and regulatory dispositions, must agree the context. The context of an electoral system is composed not by isolated referents for the configuration, the functioning, and the effects of the system itself, but by a whole of interdependent variables.

There is not a unique or perfect electoral model, but different electoral systems used to accomplish the objectives established by the citizenship and political forces at a determined place and time. A system will be adequate when it is fit for the degree of democratic development of the community in which it is applied, or when it is capable of facilitating the community’s transition to democracy or democratic consolidation itself.

Even though the design can provoke certain results, such as an easier construction of majorities or can serve to reflect in a more reliable or proportional way the existence of different political groups, the truth is that other factors which are not necessarily derived from technical electoral elements are the ones that can propitiate the existence of the “artificial” or circumstantial majorities. Such elements can be the legislative body size, the correlation of forces among the diverse political parties and its consequent construction of coalitions or alliances, the geographical distribution of the electorate, the electoral pacts or agreements, etcetera.

An inclusive and representative democratic project, which is politically viable and with high standards of legitimacy, must consider, and even meet, the different expectations and political ideologies of each and everyone of the political actors (citizens, political parties, citizens organizations, pressure groups, etcetera), regardless of the coincidence, convergence, proximity, or even diametrical divergence of such positions in certain topics of the political agenda. The electoral systems are a product of political agreements. They are the way in which the aggregation of political groups’ interests is shown. Those interests shall not be ignored by juridical operators, except for when they are opposite to the existence of free and fair electoral processes, as it will be explained further.

The choice of a concrete electoral model (direct or indirect elections), its development (majority system, proportional representation, or either mixed or segmented) and its characteristics or combination of elements (simple, absolute or qualified majority; pure or impure proportional representation, or with a governability clause), must be a decision based on consent or majority. However, not even the majority’s agreement nor the wide consent shall exclude the minorities’ possibility of representation or voice in the government’s collegiate organs, as it happens in parliaments, congresses or legislative chambers, as well as in plural executive or administrative organs (town or city councils).

In order to prevent the electoral systems becoming theoretical, inefficient or inoperative formulas, the political agreement, the social context, and the circumstantial aspects are important. However, those aspects cannot annihilate or proscribe the principles which inform the free and fair electoral processes: The human right of passive and active vote; the celebration of periodical and authentic elections; universal, secret, and equal suffrage; the respect for human rights; the neutrality of the electoral administration regarding other State organs and political actors, and the jurisdictional control of the electoral acts’ regularity.

 

Territorial Organization of the State

Regardless of the unit concentrating the monopoly of the coactive power it might constitute, some extend of decentralization from the juridical-political power or from the transmission of competences or faculties according to the space or territorial validity of the enforcement of the law is considered, when a State is been design. Thus, it is possible to distinguish among diverse grades of decentralization of such power. From the whole centralization of such faculties in national bodies, up to the absolute decentralization of them in public entities which allows them to create and enforce legal norms in its jurisdiction.

In other terms, spatial applicability of the law is not one. Therefore, depending on the territory, there are several creators and enforcers of the legal rules. Among the State, there are national, local, provincial, departmental, regional, autonomic, and eventually, county bodies with a specific and exclusive competence, depending on the form of the State. These competences might be classified among normative, administrative or jurisdictional ones, valid in the whole territory for certain topics (when national) or just in part of it.

From a lower-higher perspective and taking into account the different territorial division organization, States can be classified in central or unitary, regional or composed by autonomies, federal, and confederations.  

Since next to the national bodies coexist local, state or province, and even county authorities, Federal State is one of the most defined grades of decentralization of the juridical-political power. This coexistence implies that all of them are elected by the community, autonomous from each other, and entitled to absolutely function within their own jurisdiction. It is about two different delegated branches of government with equal level, on one hand the federal level and, on the other, the local states level. In the first one, there are whole-territory valid rules, issued and applied by federal bodies and, therefore, made for all the people living there. On the other hand, there are local norms created by local bodies always taking into account the Federal Constitution, which are valid only in some part of the national territory and with a narrow validity scope.

Power is not just concentrated on the center, but also in the provinces o local states. They have political, normative, administrative and jurisdictional faculties within their own jurisdiction. The distribution or decentralization of the political power attends to a centrifugal theory. This feature does not imply that the State should not be considered as a whole national federal State. Even taking into account that certainly national or federal Constitution, as well as national or federal authorities (legislative, administrative and jurisdictional) exist, there are also local states Constitutions and authorities (legislative, administrative and jurisdictional) which, definitively have to adjust to the federal Constitution containing all the principles and fundaments of the federal or national State. These features appear on most of the federal States. However, there might be some faculties reserved exclusively to the federal authorities like, for instance, the justice administration.

Some examples of federal States are Germany, Argentine, Australia, Brazil, the United States of America, Mexico, Nigeria, and Venezuela.

On the other hand, the Regional or Autonomic State is a form of organization of a national State, through which certain public, executive, as well as normative functions correspond to “the depending territorial bodies”. This way, some nations as Belgium, Spain, Portugal, and Italy, have developed regions with a constitutional guarantied self-government, which, from a narrow point of view, does not match the rest of the local States of a federal State, or the territorial minor bodies of a unitary State.

Through the national Constitution, there are some central authorities in this State, entitled with some side faculties. Nevertheless, without implying that this can be considered as a faculty to design their own Constitution, there are some other regional, territorial or provincial authorities with express faculties and legislative autonomy. Also, they do not have a representative chamber with territorial interests protection aims, nor participate in the constitutional amendment process, nor have any recognized attributes in the jurisdictional ground.

Due to the monopolization of the power as well as of the exercise of faculties that characterize the public dominion by some national authorities, within the so-called central o unitary State, political power is completely centralized. Every person situated beneath that sovereignty obeys the same and only central or national authorities and thus, they are subject to an only constitutional regime and to the same laws. 

However, some degree of faculties’ decentralization in favor of the local, regional, departmental or county collectivities is not incompatible with the unitary State. Nevertheless, due to the fact that it is the central authority the one that concedes and supervises the exercise of such power, full autonomy is never reached. Since a national authority accumulates public power, it can be said that it attends to a centripetal theory. Bolivia, Colombia, Ecuador, and France are some examples of unitary States.

Nevertheless, there is another model of organization of the State: the confederated States, to which, the confederation of States, have recently joined. Switzerland is located among the first ones. There, the preservation of freedom, sovereignty and independence of the confederated entities before the national Authority strengthens the level of autonomy. Also, the entities are equal among each other and, therefore, they have the right to separate from the confederated State in any moment.

On the other hand, the confederation of two or more national independent States is aimed to satisfying economical demands from their components. It is regulated basically by international law thorough treaties or agreements like in the paradigmatic case of the European Union. It is based on the interstate cooperation and coordination principles, as well as on the integration of communitarian or union and states body of laws. Besides from the mainly economical and commercial topics, some other spaces in which the confederation is hold are the ones related to the exercise and infrastructure of communication, as well as cultural, scientific, technological, assistance and sanitary integration, among others.

Even though there are communitarian and national bodies with diversify competences, the communitarian bodies can issue rules with direct efficacy within the internal national States body of laws. In some other cases, a previous selection and adoption of some internal acts is required.

In other terms, what distinguishes a federal State from a central or autonomic one is the decentralization degree. And between those and the international of States, the difference is that the first ones find their legal fundament in the national body of laws, while the confederation of States is based on international law ruling.

Since the authorities to be elected, as well as their regulatory legal framework, depends on the model of the State, it is necessary to take into account the diverse forms of organization that it can adopt. Within a federal State, it can be found federal (executive body representative or president and legislative body, normally with a higher and a lower chamber), local, and state or province authorities. These authorities will be declared through electoral processes ruled, in each case, by different laws which also contain the institutions in charge of the preparation of the election, as well as some others in charge of solving the electoral dispute resolutions both, local and federal, but always attached to bases or principles established in the federal Constitution. However, this is no obstacle to let a central body organize the elections and a different one, also national, solve the disputes arise from the local, federal, and even at the county level, electoral processes.

Central authorities in a unitary State design the legal framework for the election of the own national and, if such is the case, departmental and local or provincial authorities. Although there can be some local authorities responsible for the administration of the local electoral process, in a regional or autonomic State, the ruling to which the institutions as well as the national and local electoral processes should stick to is established by the national authorities.

 

Democratic Political Government

The contemporary classification of government forms distinguishes, basically, two main categories: The European parliamentary system and the American presidential. From the organization of each of the state powers, the relations among them and the form in which they are connected, fundamentally the executive and the legislative, it can be distinguished between one form and another.

The presidential system arises in the American Constitutionalism and is characterized for: a) the executive power is unitary, given that it concentrates the figures of head of state and head of the government; b) the president is elected by the people and not by the legislative power, which gives him a greater autonomy regarding the last one; c) the president freely appoints and removes the members of its cabinet, state secretaries or ministers; d) neither the president nor the state secretaries and ministers are politically accountable in front of the congress; e) the president, the state secretaries, ministers, and members of the cabinet cannot be members of the Congress; f) The president can be affiliated or militate in a different political party than the Congress majority, and g) the president cannot dissolve the congress nor the congress can give a censure vote to the president.

The parliamentary system comes from the political evolution of a great number of European countries, specially England’s, and is characterized by the following: a) the members of the cabinet (executive power and government) are members of the parliament as well; b) The cabinet is conformed with the heads of the parties which by coalition form the parliamentary majority; c) The executive power is divided among a head of state with representation and protocol functions, and a head of government who handles the administration and government itself; d) In the cabinet there is a person identified as the prime minister, with great political influence in the government; e) the cabinet’s subsistence is guaranteed through parliamentary majority’s support; f) the public administration is commended to the cabinet, under the parliament’s constant supervision, who can demand political accountability to the government; g) there is a permanent inter-organic control between the parliament and the government, and h) while the parliament can deny a vote of trust or can give a censure vote to the cabinet, under which the last one would be bind to resign, the government can ask the head of state to dissolve the parliament.

In addition, another form of government can be shown: the dictatorial form of government is the one in which the dictator or autocrat uses its attributions from his own authority and not by temporal delegation. It generally derives from institutional crisis in which there is a general belief that the existent powers of the government are not capable of handling the situation. It can also be originated by plebiscitary processes, or by armed movements and coup d’ etat. The first ones establish governments with charismatic leaders; the last ones establish praetorian dictatorships. The dictatorial government tries to consolidate its support by penetrating in a great part of the community’s life, through the organization of a unique party and propaganda, or through a military apparatus. Dictatorship could create a totalitarian state.

It is important to have reference of the form of government (presidential, parliamentary or dictatorial) in order to determine de viability of institutions’ and electoral processes’ legal design. This, for that representativity and functionality are guaranteed in the electoral system, as well as governability in the political one. Of course, it makes sense to face the technical aspects and the cultural, economical, political and social contexts, in regards to presidential and parliamentary forms of government.

 

Political Parties System

The parties system is the whole of parties in a certain State and the elements which characterize its structure: the number of parties; the relations among them, considering their magnitude as well as their relational forces, and, in third place, their ideological and strategic locations, as elements to determine the ways of interaction and the relations with the context in every scope.

In attention to the number of political parties existing in a given political system, it is spoken of multipartidisanship, bipartisanship, or unique party. As it has been said before, regarding dictatorial or totalitarian forms of government, it can be spoken of a unique party system (as it happened in the fascist regimes, of Communist China or the Soviet Union) which is not about institutions derived from a democratic process, but structures for power preservation.

The bipartisanship (as in the United States and England, for example) is identified as derived from an electoral system based on a majority principle, while the multipartisanship system (such as in Germany, Belgium, Finland, The Netherlands and Switzerland) is identified as an effect from the proportional representation system. This reductionist way of analysis establishes a line of connection between fragmentation (multipartisanship-proportional representation) and polarization (bipartisanship-majority), which has made to consider that either one system or the other contributes to the crisis and lack of stability of the democratic system.

Other criteria disregard quantitative typology in order to favor competition or not within the party system.

Legal Instruments

 A legal framework is always fundamental. Legal norms are mandatory and determine how the regulation of an electoral system works. Legal devices provide electoral actions with certainty and security.

Within democratic and constitutional regimes, electoral issues are legally regulated by a diverse and coordinated legislation derived from a fundamental norm, or by a Constitution. Such instruments can be listed as follows:

• Constitution: It is a fundamental and mandatory rule from which derives the legal system of a country. The Constitution sets down basic rules on the way a nation and its government are organized, on the fundamental rights which will be enforced, on the basic principles guiding the electoral system, on the conditions that individuals have to accomplish to become citizens, on the existence of political parties, electoral authorities and electoral courts, and on procedural issues. Constitutional rules are the highest rules in a legal system; they cannot be modified easily and last longer than others.
• International treaties: International treaties promote fundamental rights, particularly those related to political participation and voting.
• Electoral laws: Electoral laws are normally enacted by the Congress. Congresses around the world usually represent the people’s will. The majority of electoral rules are contained in electoral laws. They are much more flexible than constitutional laws and are useful to regulate electoral topics in a more handy way. 
• Judicial precedents: They are rulings and resolutions issued by judges and courts in order to solve electoral disputes. Nowadays, they have reached a top standard quality due to the relevance of the judges and courts in general within a nation’s institutional life.
• Electoral Authorities’ Executive Orders: They are issued by administrative authorities in order to complement constitutional and legal rules.
• Codes of Conduct: They are rules agreed by political agents. The codes of conduct aim at enhancing respectful, ordered and civilized conducts during elections. Referees are usually in charge of enforcing them.

 

 

International Treaties

Experts debate whether constitutions or international treaties have to be seen as the highest norm of a particular legal system. However, a compromise has been reached according to which some topics contained in international treaties, such as the protection of human rights (including of course political and voting rights which are part of the so-called “second generation” of human rights), have to be included within any nation’s legal system. Otherwise, such a nation can be seen as unconstitutional and undemocratic.

International treaties, which are now mandatory for more and more countries, have promoted and consolidated political and voting rights. Among such treaties, some can be listed as follows: the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the American Convention on Human Rights (also known as the San Jose Convention), and the Convention on the Political Rights of Women.

International documents are an important source of electoral law. It is impossible to underrate the high number of international covenants, resolutions, charts, declarations and reports related to human rights in general and to political rights in particular. Many important rules are derived from international documents. For instance, every democratic country has to vote the appointment of its representative officials. In the same line of reasoning, international documents enhance the importance of international observers in electoral processes.

International documents are regulated by specialized rules of international law. However, treaties in particular have to be adopted by national constitutions. National constitutions must see international treaties as producers of national laws, as higher regulations, as mandatory norms. Ordinary legislation and regulation have to detail both the content and procedural issues established by international treaties.

According to some rules derived from the Vienna Convention on the Law of Treaties, (1969), there are three main principles regulating this topic: a) Every treaty bounds the states which approved it; b) No State can be bound by a treaty which has not been approved by it; and c) Convened obligations are based on the consent of the states. 

International treaties are so important in the world that it is very difficult to think of a national rule or constitutional norm (particularly in the field of electoral and political rights) that can oppose them. Democratic constitutional states do recognize and adopt international documents in their internal legal system.

Constitution

The main rules governing an electoral regime have to be established at constitutional level. Under such scheme, inferior regulations must be enacted in order to develop constitutional rules’ content and application. Nowadays, there are no clear rules to follow in order to know which topics have to be included in the Constitution. Such a decision depends on many different conditions prevailing in every single country. Anyway, some of the topics commonly set down by constitutions are basic rules on the form of government, on how representative agencies must be integrated, on fundamental rights as well as on the legal devices which can be used to protect them, on the main principles governing the electoral system, on the main features distinguishing voting, on the existence of political parties and their internal regime (including topics such as funding, for instance), on the existence of electoral authorities and electoral courts, an on the kind of procedural rules that have to be followed.

According to the level of complexity of the rules used to reform the Constitution, and even though constitutions are usually intended to last for long periods in order to deliver certainty, rigid systems are distinguished from flexible ones nonetheless.

Some fundamental principles which can be included in the Constitution in order to ensure the undertaking of free, authentic and periodic elections in every country can be listed as follows: the right to vote is universal and has to be used in a free, secret and direct way; elections must be organized by an autonomous public agency; elections must be undertaken in a legal, independent, impartial and objective way; candidates and political parties must have an equal access to the media; every single electoral order has to be judicially reviewed in order to confirm its constitutionality as well as its legality.

A constitution must be seen as the main legal norm of any state, which implies that it is not only mandatory, but has to be enforced and honored as well. Electoral rules set down by constitutions are not an instance of wishful thinking, but legal norms that have to be obeyed by constitutional and democratic regimes. 

Likewise, since the constitution is the highest law within legal systems, it validates all the other norms within such legal systems. Constitutional rules and constitutional principles cannot be violated or ignored by non-constitutional norms. Any constitutional violation perpetrated by unconstitutional norms is null.

There are all different sorts of electoral authorities. However, constitutional autonomous institutions have often been established. Such institutions are usually the highest electoral authorities and are completely independent from any traditional branch of government.

In our days, the creation of constitutional tribunals has been privileged. Such tribunals have been empowered to directly interpret and adjudicate constitutional law. Bearing this in mind, since electoral topics have been constitutionally recognized, not only the creation of constitutional tribunals which are specialized on solving electoral disputes, but the extension of the powers of traditional constitutional tribunals to do so, seems to be reasonable.

Federal systems work under a double-leveled scheme. On one hand, federal constitutions develop the electoral topics that we have referred to for the federal level. On the other hand, even though states must use their legislative autonomy to enact electoral laws, they must nonetheless follow all electoral principles set down by the federal Constitution.

The inclusion of electoral topics in the Constitution does not mean that a new constitutional document has to be enacted. Such an addition can be undertaken enacting some strategic and specific reforms.

Electoral Laws and Acts

 

 

 

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.

Usually, 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, an so on).

Under the Constitution, electoral laws can regulate electoral topics as follows:

• Integration of representative offices;
• 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;
• Training for voters;
• 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.

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.

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.     

 

Administrative Regulations

Administrative regulations are issued by electoral authorities to regulate specific managerial issues in an agile and simple way. Such regulations are more flexible than legislative procedures. 

During elections, a lot of managerial issues have to be solved in an urgent way within short deadlines.

Electoral laws do not have to regulate such topics, which, by the way, can change one election at a time.

Administrative regulations complement electoral laws, and they have to be issued by electoral authorities in charge of undertaking elections from an executive point of view. Electoral authorities empowered to overview electoral actions have to review the regulatory amendments.  There are many electoral structures empowered to undertake such a task. Usually,, such structures have to be independent, permanent, and transitory.

In countries with independent electoral authorities, such authorities are empowered to issue administrative regulations. The aim in those countries is to prevent the existence of insufficient regulations. Administrative regulations allow electoral authorities to regulate specific topics such as how political parties have to file their reports, how to handle candidates’ registry, electoral campaigns, electoral advertisement, the election day, and so on.

Judicial Precedents

Judicial precedents are essential in the integration of the electoral legal system. Such a claim implies a very important change: electoral disputes are no longer solved exclusively by political authorities but also by judicial ones (on one hand, there are some cases in which the resolution of electoral disputes is carried out at the courts; on the other hand, some other cases can be seen as instances of mixed systems in which both political and judicial authorities play a role in solving electoral disputes). Political authorities used to solve electoral disputes by means of political criteria. Now electoral disputes are solved by special electoral courts, which sort out disputes using legal criteria). Electoral litigation has been judicialized and the rulings issued by electoral courts and electoral judges (which can be seen as judicial precedents) have become capital to understand what electoral law is supposed to be. 

In common law systems, judicial precedents can be seen as the origin of the law (on the contrary, in civil law systems, enacted law is seen as the origin of the law). According to legal concepts such as stare decisis or ratio decidendi, the reasons supporting previous rulings have to be taken into account to solve new and similar cases. Electoral law is defined not through codes and statutes, but through judicial opinions.

In common law systems, electoral courts are very important. Such courts deliver a fundamental contribution to build-up the legal system. Judicial opinions (seen as judicial precedents) produce the law; electoral judicial opinions (seen as precedents) produce electoral law.

The so-called English system or ordinary litigation system empowers judges at the judicial branch of government to solve electoral disputes in a definitive way. Their definitive resolutions can also have the power to put an end to a sophisticated system of electoral appeals (which can be either administrative or political, as previously explained).

It is clear that for non common law systems (which are usually known as civil law systems), judicial resolutions of electoral disputes are also important.  Electoral judges in civil law systems have also made important contributions, which have strengthened and developed electoral law. In those countries, judicial precedents issued by electoral courts have to be used to solve new cases.

Judicial resolutions of electoral disputes are so important that in some cases they also decide on the constitutionality of executive orders issued by electoral authorities. When electoral resolutions do so, they can be seen as constitutional courts delivering constitutional interpretations.

Those who are authorized to establish mandatory precedents are the highest courts. Precedents are established following some formal requirements such being reached through unanimous or composed decisions. Judicial precedents (usually known as jurisprudence) are established through repeating the use of one ratio decidendi to solve more than one case. Such cases have to be similar in order to be solved using the same ratio. The highest courts’ resolutions on opposite judicial opinions, which have been upheld by different courts, are also helpful to establish judicial precedents. Usually, judicial precedents can only be interrupted or revoked by grounded and justified decisions of the highest judges.

How far do judicial precedents and judicial opinions can reach? What are their effects? Who are the authorities bound by them? There are restricted legal systems within which judicial opinions and judicial resolutions are constrained to resolve the issues contested in each single case and which are mandatory only for courts and judges. However, there are also legal systems within which judicial opinions and judicial precedents can have general effects (erga omnes) and far reaching powers not only affecting every single authority but also nullifying enacted legislation.

Electoral Authorities Executive Orders

Electoral authorities are empowered to issue executive orders aimed at regulating electoral issues. International agreements between electoral authorities (whether administrative or judicial) of different countries have been very useful to set down international cooperation and shared academic, publishing or research projects, all of which have been undertaken through high-profile conferences, seminars, congresses, workshops and publications related to electoral topics.

International agreements signed by electoral authorities do not have the same legal status than judicial resolutions. However, they are also important because they do bind the signing countries in a formal way. Once an electoral agreement has been reached, rights and duties are produced and common efforts should be performed to tackle the agreement’s objectives. International agreements (including non-electoral agreements) can be seen as a particular way to create electoral law within a general framework demanding global solutions for global problems.

International agreements must be signed by authorities authorized to do so. They must also be in line with preexisting legal rules. Unconstitutional or illegal agreements are all null and void. Agreements violating the rules set down in other agreements have to be considered null and void as well.

In federal systems, electoral agreements have been reached by authorities of different levels (the federation, the state authorities and the municipalities) and have been useful to solve electoral issues involving them (especially managerial issues) in a cooperative way. Such agreements have benefited the electoral know-how and the efficiency regarding the following topics: management, electoral training issues, the common use of the voters’ registry and voting IDs (all of which, expensive, huge and technologically complex matters, are commonly developed by federal electoral agencies and contractually transmitted to local agencies which apply them in local elections).

Codes of Conduct

The expression “codes of conduct” can refer to many different things. Therefore, it is convenient to exclude three instances of such an expression from the outset. Those three instances affect not only electoral agents, but also elections’ undertakings and cannot be seen as codes of conduct legally included within electoral processes:

• Broadly speaking, regulations of electoral management cannot be seen as codes of conduct. Therefore, it is possible to distinguish general “codes of conduct”, such as the ones regulating Australian electoral officials, from individual codes aimed at particular individuals, such as many which have been drafted by international organizations (electoral observers). We are talking about a group of rules, which aim at establishing neutral practices for persons or organizations in charge of undertaking elections. Such rules can be easily seen as a kind of managerial ones, similar to those drafted by public officials or professional bars.
• The general codes enacted by political parties cannot be seen as codes of conduct either. Such codes are not mandatory for other political parties, but only for their active members.
• Implicit codes for electoral performance that exist in many different democratic regimes cannot be seen as codes of conduct. Such codes establish rules regarding the candidates’ acceptance of the final results or the agreement according to which particular issues will not be discussed by the candidates. Implicit codes for electoral performances are neither explicit, nor public.

Which are the main features distinguishing a code of electoral conduct? In our point of view, there are at least two that can be put as follows:

• A code of conduct is a product of an agreement reached by political parties. Such an agreement can be in force for more than one election.
• A code of conduct aims at complementing electoral rules. That is the reason why they play an important role in transition elections. Their main objective is two-folded. On one hand, they aim at reaching a pacific development of the election. On the other hand, they aim at preventing abusive actions from powerful groups.

There are many differences bringing the two of them apart from each other. Such differences are based on their distinctive features and on how strong the obligations derived from them are.

Political parties can draft codes of conduct, which can include international organizations among their signers. Codes can be promoted by electoral authorities.

Now, codes of conduct promoted by electoral authorities can face a fundamental challenge, which can be put as follows: can codes of conduct be mandatory? From a speculative point of view, codes of conduct have to be voluntary. Some interesting conclusions can be drawn from some studies, though:

• Some countries have incorporated codes of conduct into the electoral legislation enacted by the Parliament. Here, discussion must be started from a different perspective: Is it still possible to talk about a code of conduct?
• Some other complications are derived from those cases in which codes of conduct freely agreed by the contenders set down punishments that have to be applied to anyone who does not honor them. In such cases, codes of conduct get a more normative status.

A majority of codes of conduct have been consented, though. They do not prevent any punishment whatsoever if someone fails to honor them. Such situation can be considered as integrating the normative dimension of an electoral process. Anyway, it must be said that effective codes of conduct do regulate very important issues and they tend to become mandatory.

Regarding the codes’ content, it can be said that they are rules aimed at:

• Preventing any kind of intimidation and violence;
• Establishing rules of conduct on campaigning;
• Preventing any kind of abusive conduct from powerful political parties.

A majority of codes of conduct promote cooperation between electoral authorities and usually impose periodical meetings. However, they do not empower electoral authorities to interpret them, nor to execute them.

Creation and Amendment Process

 Comparative law shows how the enactment of a new electoral law is derived from extreme circumstances in which political institutions are afflicted by a serious crisis. The most frequent case is the one in which a transition from an authoritarian regime to a more democratic one is taking place. In such a case, the enactment of electoral laws is necessary both to legitimize and to put the situation under control.

A distinction must be drawn between:

• The creation of electoral laws, which means to draft completely new electoral rules for a country that is facing a political change;
• The reform of electoral laws, which refers to the adaptations of an electoral legislation that do not imply a dramatic political change. The reform of electoral laws is not as far reaching as the creation of electoral laws can be. However, it can imply important changes to every electoral system, as long as basic principles such as the right to vote, the right to be voted, the existence of political parties and the thorough supervision over the elections prevent the undertaking of a major political transformation.

The difference between the creation and the reform of electoral laws is based on pragmatic reasons related to how each one of those processes is undertaken.

• Electoral reforms can be undertaken one step at a time. Political agents and electoral authorities can be taken into account in reformative process.
• The creation of electoral laws can be seen as the opposite. Usually, the enactment of new electoral laws has to be done quickly. We are talking about urgent cases in which legitimacy has to be fulfilled and new governments have to be on duty.

Creation Strategies

Any country going through a democratic transition has to develop a strategy on its own. Such a strategy can follow one out of two available routes. In the first one, the importance of a new electoral law is fully evaluated as well as the impact of such an option in the legal system. Political parties debate the proposal in order to reach a sound understanding about it.

From a comparative point of view, it can be said that the most successful cases are those in which a multi-party commission is empowered to draft the new law. A broad consensus opens up the most desirable route to begin the electoral process and the democratic transition.

However, we understand that this option has some setbacks with respect to the first elections organized at the beginning of the transition period. Some of such setbacks are worth being mentioned:

• First, this option can contribute to extend the powers of provisional authorities in charge. Such an extension cannot be good and may bring along serious consequences. It may extend the powers of provisional authorities, affecting both their legitimacy and the efficacy of the new regime.
• Secondly, a new law may produce an illusion. Such an illusion can be seen as a rather frequent event in transition periods, because political parties, which took a relevant role drafting the law, do not usually get an equivalent prominent role in the new regime. Therefore, the electoral legislation derived from the process can lack a real representative dimension.

The second route available would be to adopt a strategy aimed at shortening the legislative process. In such a case, the government usually decides to modify existent laws. Experts are commissioned to work on the matter using international support. This strategy can face some setbacks, though:

• On one hand, as long as many important issues of the old regime can be preserved, legislative reforms can be either inadequate or inconsistent.
• On the other hand, electoral laws are not very easily reformed. It is not very simple to reform electoral laws in a deep way.

Bearing all this in mind, a third strategy can be explored as follows:

• We are talking about a synthetic strategy in which the government enacts provisional rules aimed at regulating the undertaking of elections. Such regulation forces the elected Parliament to draft new electoral laws.
• Finally, we can talk about a gradual and slow-paced process that takes place in some locations. Such a process is aimed at political transitions and takes place by means of several elections which progressively introduce plural features reflected in law.

Gradualist strategies are derived from the political dialogue and the compromises reached between governments and minorities and can be more or less explicit. The more explicit such dialogues are, the more legitimate they become.

Problems in Amendment Process

Usually, electoral laws in consolidated democratic systems have a two-folded and inconsistent nature.

• On one hand, they are involved within political and social debates, which causes some of their weaknesses to be more frequently addressed than their strengths. Frequently, such a situation encloses a contradiction that can be summed up by the following question: how come a proportional system can be criticized when a clear separation between voters and candidates has been promoted?
• The study of consolidated electoral systems draws a significant conclusion: electoral systems are supported by a very important degree of continuity. A kind of universal rule can be established as follows: electoral systems tend to consolidate their fundamentals; however, they can be modified when the political system is on crisis.

Such a situation is consistent with the permanent, technical, minor and procedural changes afflicting electoral laws. Among the reasons supporting the basic continuity of electoral systems, some can be mentioned as follows:

• First, no one is eager to change what is known for the unknown. Agents of any electoral system have certainty on the way in which such system works. Such a certainty does not prevent citizens or even political parties from having different opinions about the electoral system.
• Secondly, those who can modify electoral laws are the winners of the elections. Those who have been benefited from the current system are the ones who must promote any change.
• Besides, there are some historical facts that make any modification more and more difficult. Citizens usually show a kind of empathy towards their traditional electoral system, which is by the way and according to them, the closer representation of democracy. The older the electoral system is, the stronger the citizens’ empathy becomes. Tradition forces legislators to endorse traditional clauses, which may be seen as legislative relics somewhere else.
• Finally, there are many legal challenges derived from reforming electoral laws. The most important electoral rules are set down by the Constitution and vested, therefore, with such a special protection. Electoral laws can only be reformed by composed majorities. Such a fact obliges political parties to reach a clear and broad understanding on the subject.

Nonetheless, minor reforms to electoral laws are frequent. Electoral laws in both new democracies and consolidated democratic systems are constantly reformed, constantly adjusted.