This section will review fundamental aspects of
voting at voting places including privacy and secrecy, various special voting
procedures and guarding against fraud.
While international law is clear regarding the
right to vote in genuine elections, “International law is largely silent on the issue of voting procedures. This is likely in large part due to the variety of practice
among States. However, election day procedures greatly impact the enjoyment of
electoral rights.”[i] Therefore
it is largely left to the national legal framework to establish voting procedures
and to find effective ways to both make the secret ballot accessible to
qualified voters and at the same time to safeguard against fraudulent voting.
1. Privacy and Secrecy
Voting procedures to ensure that qualified
voters are able to exercise their right must always be vigilant to respect that,
“The secrecy of the ballot is one of the great pillars on which free and fair,
credible and legitimate elections rest.”[ii] Election regulations must underline that not
only is secret voting a right of the voter but an absolute obligation.[iii]
The basic international standard to be met is
that voting by secret ballot should
take place in the privacy of a voting booth, and in that the a manner
that marked ballot cannot be seen as it is cast and cannot be later identified with
a particular voter.[iv] Where for specified reasons a voter is unable
to come to a voting place to vote the legal framework must provide for
alternate mechanisms that will none the less meet the test of secrecy of the
ballot.
Certain countries have specified in their
legislation the minimum requirements for polling stations. For example, with
respect to secrecy of voting, ensuring that polling officers have clear
visibility of the entrance to the voting compartment in order to verify that
voters enter the compartment unaccompanied, the absence of windows, holes or
other ways of observation of the voting
compartment and the requirement for a door or curtain. The custom in some countries, “of family
voting -- where the head of a family casts ballots on behalf of the other
members of the family -- should not be condoned.”[v]
Similarly, voting at the same time as another person is in the voting
compartment or voting outside of the voting booth should both be prohibited.[vi]
The provisions regulating
voting procedures must ensure the proper identification of all voters and the
existence of mechanisms to prevent multiple or fraudulent voting. However, the
procedures should not be so complicated or cumbersome that they impede the
voting process.[vii]
The law should require that all ballots and voting materials are adequately
safeguarded, before, during and after polling day.
As additional guarantees to the right to a free and secret vote, some legal
orders require that ballots are cast and then placed in an envelope behind a
curtain or inside a compartment provided at the polling station. In some
jurisdictions voting in a compartment or behind a curtain is mandatory while in
others it is simply optional often depending on the existence of a single
ballot for all parties and candidates or separate ballot papers. With regard to
the use of envelopes to protect the mark on the ballot, it could be argued that
this is unnecessary, expensive, disturbs or at least delays the counting
process and can be easily avoided by slightly increasing the thickness of the
ballot paper. On the contrary, the mandatory use of compartments or curtains is
an essential practice and with high educational value, even in those countries
where the freedom to vote cannot be questioned. Another way to ensure the
democratic character of the electoral process is the use of indelible ink to prevent
an elector from voting more than once, as well as the use of transparent ballot
boxes.
Finally, basic electoral materials should also include a
record or register that reflect the accounting of ballots and the election results and the various incidents
that occurred at each polling station. To the extent that the official
tabulation and the allocation of seats are usually done based on these records
and not directly on a recount of the ballots, these documents acquire a special
significance for the electoral process. Taking into account that in many
countries these documents are completed by citizens without special knowledge
in the field, it is necessary that the records have a simple and understandable
form. This need increases in inverse proportion to the level of social and cultural
development of the country concerned. However, it is worthy of attention
because this aspect does not always attract the attention it deserves by
electoral management bodies and international organizations monitoring
elections.
The fact that these records are usually filled at least in duplicate (even in
more copies where representatives of political parties or candidates can have a
copy) and the legal framework provides for alternative procedures aiming to
ensure that they reach the electoral authorities on polling day reflects the
important role of these documents.
The legal framework should be sufficiently flexible to allow the use of
technological innovations in aspects related to the voting and vote counting
procedures, such as the use of electronic machines for recording and counting
votes. However, this degree of flexibility should be regulated by establishing
requirements for approval and control before the use of new technologies.[viii]
2. Special Voting Provisions
Electoral laws may contain
special mobile or mail voting provisions to facilitate voting by persons with
disabilities, people in hospitals or prisons, voters abroad (for example,
citizens abroad for professional reasons, diplomats or voters displaced by
war), or voters who cannot personally reach the polls due to any other
significant reason.
Such voting provisions may be available to a
single individual, such as a housebound, or incapacitated voter or a person who
is abroad on business; or to a class of voters, such as diplomats, police, the
military or other security forces; or to an entire community, such as a
hospital, or other institution or persons displaced due to the outbreak of war.
However applied, these
provisions must not be discriminatory and must be applied uniformly to all
voters who are in the same situation and should be designed to prevent abuse.[ix]
Special voting
provisions should also strive to respect the dignity of the person. For example, in the case of disabled or
illiterate voters, “Wherever possible …steps should be taken to enable them to vote without
assistance.”[x] At other times, this may not be practical and
the voter may require the assistance of another. In such cases, the legal framework should
consider who may qualify to assist the voter (e.g. should political
representatives be allowed) and how many times a single person may assist other
voters.
Where the law specifies
that qualified voters may vote other than at a designated voting place there
are generally a variety of provisions including the following:
• Mobile voting, where polling officials transport a mobile
ballot box to voters who
cannot attend their designated polling station
(e.g., ill or elderly voters can cast
their ballot at home or a hospital). Mobile
voting usually takes place on election
day but may also happen in advance;
• Postal voting, where voters cast their ballots by post in
advance of election day;
• Early voting, where voters unable to attend their designated
polling station on
election day (e.g., election officials or security
personnel) cast their ballot early;
• Prison-voting, where prisoners who retain suffrage cast
their ballots in special
polling stations within the prison;
• Out-of-country voting, where expatriate
citizens entitled to suffrage cast their ballots
at special polling stations, often at their
country’s embassy or by post; and
• Military voting, where members of the armed forces vote at a
designated local
civilian polling station or in their barracks.[xi]
In the application of these provisions, all possible and reasonable steps
should be taken to continue to safeguard the secrecy and privacy of the vote
and other procedures that would otherwise be in effect at a voting place. For example, where a mobile poll is used, the
presence of party or candidate representatives together with voting officials will
help to ensure the integrity of the process. Where mail ballots are employed then a double
envelope system should be used so that the inner envelope in which the ballot
is deposited is a blank envelope thereby preventing identification of the
voters.[xii] In the case of early voting, for example,
steps need to be taken to ensure that the name of the voter is marked as having
voted so that the voter may not vote again either at another early voting place
or their regular voting place on election day.
It is generally
accepted that the legal framework may provide that members of the army or the
police forces can exercise their right to vote while on active duty. While it
is important to protect the voting rights of members of the army or the police,
the relevant legal provisions should be carefully designed to prevent abuse.
Furthermore, the legal framework often allows the establishment of polling
stations in military units located in remote areas far from any population
center. While in some cases the adoption of such measures may be inevitable, it
should be accompanied by an express provision specifying that it applies only
in exceptional situations and, where possible, members of the military and the
police should vote in advance. Members of the armed forces who are not on
active duty on polling day must vote at an ordinary polling station, without
wearing uniform and carrying arms.[xiii]
The principle of voter
accommodation is commendable, however related provisions should be written to
prevent abuse and fraud. To minimize this possibility and safeguard the integrity of the special voting provisions,
the legal framework should include the following:
• A process to clearly identify voters
eligible to use alternative voting provisions and to prevent double
voting.
• Special voting provisions should only be
applied in well-defined situations, e.g., in cases where it is not physically
possible for the voter to travel to a regular polling station to vote; however,
some jurisdictions might provide exceptions to this for special
reasons, for example, allowing a large section of its voters to vote by mail.
• Representatives of parties and candidates as
well as election observers should be permitted to monitor special voting
stations.
• The number of ballot papers with serial
numbers and other security features used and the number later returned, should be
formally and transparently recorded.
• The number of ballot papers issued should
correspond with the number of requests received, plus a specified small
number of extra ballots to allow for voters who may spoil their ballot
paper.
• The names and number of requesting voters
who have used or are using the special provisions should be recorded in
polling-station and other protocols in order to avoid double voting and
to identify particular areas where the proportion of votes cast is
unusually high, which may point to the occurrence of fraud.[xiv]
Once voting takes place outside of the
confines of a voting place in particular it is evidently more difficult to
control, “Therefore, an assessment of the advantages of special voting
provisions must be weighed against the ability to regulate them properly,
securely and transparently, as well as their effecton degree of confidence in
the overall election process.”[xv] Special voting provisions are enfranchising
and a practical necessity but so too must the legal framework strive to
safeguard the integrity of the process.
Electronic voting processes likely have significant potential applications to some Special Voting Provisions, and may ultimately pave the way for more general application of electronic voting.
[i] Democracy Reporting
International (DRI) and The Carter Center, “Overview
of State Obligations relevant to Democratic Governance and Democratic
Elections.” (Berlin,
Germany/Atlanta Georgia, United States of America: DRI, 2012), 17.
[ii] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 24.
[iii] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 25.
[iv] OSCE, Election
Observation Handbook, 23.
[v] International IDEA, International Electoral Standards, 72.
[vi] European Commission, Handbook for European Union Election
Observation, 79.
[vii] International IDEA, International Electoral Standards, 72.
[x] European Commission, Handbook for European Union Election
Observation, 77.
[xiii] International IDEA, International Electoral Standards, 73.
[xv] OSCE, Election Observation Handbook, 76.
