• the extension of the female vote
• the greatest emergence of mass parties in Europe

The predominance and open confrontation between those of socialist and those of fascist ideology cornered the liberal parties until the victory of the parliamentary democracies and the Soviet Union in World War II relegated those of a fascist nature to residual regimes.

The decolonisation processes gave rise to the appearance of two large parties models:

• the mass parties of a democratic nature, in countries that maintained representative systems, even if it was with one dominant party (as was the case in India)
• those in which one decolonising party or front evolved to a single party state, with only partly open and representative elections (frequently the case on the African and Asian continents).

The American continent, on the other hand, generally maintained the liberal party model of bourgeois origin, due to the influence of Spanish constitutionalisation and, later on, of the bi-party model of the United States.

The recognition of universal suffrage obviously had vastly different effects on the democratic regimes and those that maintained non-competitive electoral processes.

Currently one might say that there is a wave of democratisation, which started in the southern European countries towards the end of the seventies, spread throughout Latin America in the eighties and progressed through Eastern Europe and numerous African countries from the end of the previous decade, with organised and effective international assistance.

Additional Resources

Published Resources

Amata, G. 'I sistemi elettorali in Italia: le difficolt· del Cambiamento.' Quaderni Costituzionali I, núm 3 (1981)

Barnes, C, R. Dahl, L. Edgeworth, and L. McDonald. The Election of President of the Russian Federation: A Technical Analysis with Recommendations for Legal and Procedural Reform. Washington: IFES, 1995.

Garber, L., and Glenn Gowan. 'The Virtues of Parallel Vote Tabulations.' Journal of Democracy 4, no. 2 (1993)

Godwin-Gil, G. Free and Fair Elections, International Law and Practice. Geneva: Inter-Parliamentary Union, 1995.

Klein, K. 'Approaches to Conducting Elections: Why an Electoral Commission.' Report presented to the Constitutional Assembly of the Republic of South Africa, 22 May 1995.

Massmacher, K. H. 'Comparing Party and Campaign Finance.' in Campaign and Party Finance in Western Democracies A.B. Bunliks

National Democratic Institute for International Affairs. How Domestic Organizations Monitor Elections. An A to Z Guide. Washington, 1995.

Noehlen, D. Sistemas electorales y partidos politicos. Mexico: FCE, 1994.

Noehlen, D. Sistemas electorales de America Latina. Debate sobre la reforma. Lima: Fundación Friedrich Ebert, 1993.

Reinolds, A., and B. Reilly. The International IDEA Handbook of Electoral System Design. Stockholm: IDEA, 1997.

Santolaya, P. Manual de procedimiento electoral. Madrid: Ministerio de Justicia e Interior, 1995.

Sartori, G. Ingeniería constitucional comparada. México: FCE, 1994.

Rae, D.W. Leyes electorales y sistema de partidos políticos. CITEP, 1977.

Reeves, P. 'Equatorial Guinea Uses Satellite Faxes during Vote Count: Technology and Transparency Can Go Hand in Hand.' Elections Today, 6, no. 1 (1996).

Valls, J.M. and A. Bosch. Sistemas electorales y gobierno representativo. Barcelona: Ariel, 1997.

Villareal, R. Perú , April 1995. Election Assessment. Washington: IFES, 1996.

Basic Alternatives

At the present stage of development of democratic systems, only the different options of the electoral system can be considered as basic alternatives at the disposal of anyone drawing up an electoral law, i.e.:

• election by constituency
• the determination of the electoral formula
• whether or not an electoral barrier exists
• the specific form of expressing the vote

On the contrary, indirect elections, instruments of semi-direct democracy, limitations to voting so that it is not universal or non-competitive, and single-party elections are inadmissible as options.

Electoral Systems

The electoral system could be defined as a group of elements of the electoral regulations that have a direct influence on the mediation between votes and seats, that is to say, those that are able bring about different results in terms of representation with the same numbers of popular votes. They are therefore the basic lines of mediation that any electoral law establishes between votes and representation and, as such, those with the highest political content. They are, ultimately, the core decisions that any legislator should make when drafting an electoral law. (see Overview under Electoral Systems).

The electoral system is a relative concept, as the importance given to a specific element may vary, depending on the point of view. Moreover, it is a historic concept, as lines that shaped the system at a particular time (e.g., the extension of universal or restricted the right to vote in an election) have ceased to do so because of the progress of the democratic system, so they become pre-established facts that no legislator can escape. Consequently, they lose their nature as a political decision, characteristic of the elements of the system.

Setting out from this dual quality (effect on the conversion of votes into seats and the target of differentiating treatment in accordance with a political decision), the elements which nowadays make up the contents of the electoral system, are:

• the constituency, considered to be the geographic unit of conversion of the votes into seats
• the electoral formula, or mathematical conversion procedure of votes into seats
• whether or not an electoral barrier will be set, i.e., a minimum percentage of votes so that the candidacies will be able to participate in the seat count
• the form of expression of the vote, referring to the capacity of the voter and, correspondingly, the capacity of the political groups that organise candidacies to determine which persons in particular will hold the office being disputed

It has been pointed out that the concept of the electoral system is an historic concept. Consequently, it is a process in which, once certain solutions have been reached, they become part of the democratic standard and leave no room for turning back, not even in states that enter into the democratic system for the first time. Among these aspects, which at the time formed part of the electoral system, but today dominate as pre-existing facts, can be found:

• the discussion between the instruments of direct democracy and representative democracy as procedures of the expression of the will of the people (see Popular Consultations: Referendums, Plebiscites, Recall)
• the choice between a system of direct or indirect election through delegates (see Direct or Indirect Elections)
• the extent of recognition of the right to vote (see Universal, Restricted, Privileged Suffrage)
• the choice of a competitive, multi-party democracy (see Multi- or One-Party Systems)

Direct or Indirect Elections

The Instruction of 1 January 1810, which was used as the electoral law for the election of the Spanish Constituent Parliament Las Cortes that drafted one of the first free constitutions in the world (that of 19 March 1812 or the Constitution of Cadiz) contains the recognition of equal and single, active and passive universal--male--suffrage from the age of twenty-five, which was unusual for that period.

However, it was a third-degree indirect vote, based on the structure of the nation, in which the citizens jointly elected delegates in the municipalities. These delegates, in turn, did likewise in the regions. And the latter determined who the representatives would be in the Constituent Assembly. This system was intended to moderate the supposed progressive excesses anticipated with male universal suffrage in a conservative sense and structure an incipient system of representation by means of groups of elected persons that coordinated among themselves for the election at the next level.

Overcoming this procedure of elections through delegates was the consequence of the extension of universal suffrage, now without any restrictions, on the one hand, and on the other, of the birth and development of political parties. Thus they achieved the mediation previously done through the delegates in a more effective manner.

Where the delegate system does still remain today, most singularly in the United States, it has completely lost its original meaning inasmuch as delegates are appointed to political parties or candidacies beforehand. The system is maintained strictly for traditional reasons, as in practice the elections are by direct universal suffrage.

In other words, the choice between direct elections and delegates to structure an electoral process is no longer possible today for those who are in a position to draft an electoral law and, as a consequence, it is no longer an element of the electoral system.

Popular Consultations: Referendums, Plebiscites, Recall

The traditional comparison between the instruments of direct democracy and representative democracy no longer has any value when it comes to forming the expression of the will of the people. The representative system is the only real way to give a concrete form to the idea of democracy today, so an analysis of the functioning of the representative system will in reality be a judgement of the functioning of democracy.

The degree of democracy of a particular state should be measured fundamentally by the effectiveness with which the institutional organs carry out representation and not at all by the degree of survival of techniques of direct democracy. Such mechanisms are not formed as an overall institutional alternative to representative democracy, but at best as a complement (see Referendums and Plebiscites, Legislative Recall).

Even considered as such, the way in which these mechanisms are judged should at least be cautious. On the one hand, it appears evident that with adequate constitutional treatment they could complement the representative and mediation structures of the political parties, penetrating the decision-making mechanisms of the citizens. However, they are also subject to abuse by governments. The referendum, in particular, has often been used with an anti-parliamentarian and personalised connotation. This has happened in authoritarian regimes that attempted to compensate for the absence of real mechanisms of representation through elections, by resorting to plebiscites, in countries as diverse as Spain in the time of Franco, Chile in the time of Pinochet or Algeria. It has also occurred in democratic regimes such as France in General De Gaulle's time. It appears generally to confirm that referendums that are not constitutionally mandated imply the admission that the instruments of representation have not been capable of solving the problem and frequently encompass a divergent attitude between the executive branch of government and the parliament, if not between the executive branch and its own party.

Other institutions of direct democracy, like the recall or programmatic vote, present in the Colombian constitution and in some of the United States (such as North Dakota), which permit a certain percentage of the voters (40% in Colombia) to force new elections, should the programme a representative was elected for not have been fulfilled, is rarely used nowadays and lacks of interest.

To sum up, nowadays representation and direct democracy cannot be considered contrasting choices for the organisation of a democratic system of government. On the contrary, the instruments of direct democracy should be employed with extreme caution, especially in countries in political transition, as they are in contrast to the typical objectives of these processes. Whilst institutional decision-making mechanisms have to be formed and the structures of political parties strengthened in these processes, instruments of direct democracy have often been used as counterproductive authoritarian mechanisms.

Universal, Restricted, Privileged Suffrage

In a democratic system, restrictive privileges, typical of the times prior to the advent of universal suffrage, are not acceptable. However, nowadays this question has re-surfaced in a different form, namely, in the controversy around the fairness (or even the necessity) to favour the vote of certain groups traditionally excluded on ethnic, racial, religious, cultural or even sexual grounds.

Throughout this work, the possibility of including mechanisms of positive discrimination is discussed, ranging from the reservation of certain posts in the electoral lists to the creation of electoral districts based on this type of criterion (see Voters' Qualifications, Candidates' Qualifications and Electoral Boundaries).

In this sense, forms of privileged voting, which had ceased to be the target of political discussion only a few decades ago, have returned in a different light and with vastly different kinds of justification to make up an element of the electoral system.

Multi- or One-Party Systems

There is no doubt at all about the fact that democracy today is a democracy of parties and that for an electoral system to be just that, it has to refer to a multi-party system. Only in this context, does it make sense to talk about free and competitive elections. On the contrary, the single-party system is not admissible, not even as a theoretical choice in the context of a discussion on the legal aspects of electoral processes.

Legal Instruments (Doctrine/Theory)

Regulatory Levels

The first thing to bear in mind when analysing the legislative structure of electoral processes is that the rules which govern the organisation and holding of elections make up one overall system consisting of the following levels:

• constitutional rules
• electoral laws
• complementary regulations (though not necessarily statutory) which could originate from the general state administration or the specific organs that make up the electoral administration
• explicit or implicit codes of conduct accepted by the contenders that exist somewhere between the legal and the agreed upon social rules and occasionally promoted by the electoral administration or even by international organisations giving electoral assistance

The combination of these four levels produces the complex legal network required for the holding democratic elections. In addition, there is intercommunication between the levels, so the shortfalls in one have to be covered by another, albeit neither necessarily nor exclusively by the one immediately below. Thus, we find that they are overall self-sufficient systems, each one establishing its own combination of regulatory elements.

However, an empirical study shows the following features in the legal regulation of electoral systems:

General Features of Legal Regulations for Electoral Systems

The constitutions of consolidated democratic states include fewer provisions referring to the electoral regulations than those who entered into democratic processes more recently. One can therefore refer to a kind of scale of contents, reaching its minimum degree in constitutions that limit themselves to the inclusion of the characteristics of voting, affirm them to be universal, free, equal and secret and leave the development of the rest of the aspects to law. Its maximum degree exists in constitutions that establish the elements of the electoral system, the main procedural rules and other aspects such as the processing of the electoral roll and the formation of bodies of electoral control and/or administration.

However, the primary regulatory instrument is the electoral law--the rules established by the representation of the will of the people precisely in parliament. Not only is a parliamentary agreement required, but the tendency is to consider qualified or reinforced majorities necessary for its approval. Any electoral law requires extensive agreement by the existing political forces, de facto or de jure. Without this, it would become the target of political discussion, when it should be an accepted, undisputed instrument for alternating or remaining in power. An electoral law that is the center of controversy is not likely to be stable. Precisely because only laws based on an extensive agreement are maintained, it is extremely difficult to modify it in-depth for sociological, political and legal reasons.

Another aspect about which it seems there is universal agreement is leaving the minimum space possible for standard regulations. An effort is made for the laws, i.e., the decision of the people in parliament, to exhaust practically all imaginable aspects of electoral processes, consequently avoiding regulation by a different power. Electoral laws are lengthy and complex and go into a degree of detail that is not often found in other fields. This has at least two negative consequences:

First, the laws are sometimes extremely rigid and thus not suitable for the regulation of a process that has as many contingencies as elections. Regulations whose slightest adaptation requires complex legal revisions cannot work.

Second, the laws may be difficult for citizens at large to understand, even though they are regulated by them. So administering the laws becomes the responsibility of electoral administrators, whether they are civil servants or members of political parties. Thus a dramatic paradox emerges, present in all electoral laws, which reflects a deeper tension between direct and representative democracy, namely, that the law has to be very extensive and go into great detail to ensure that it is the expression of the will of the people and not of some obscure interests of the party in power. Precisely for this reason, it is very difficult for citizens at large to gain access to it; and they have to apply it--everybody without exception--on the same day.

It is not only a vain but also counterproductive pretension, in terms of the practical organisation of the electoral processes, that the electoral law can encompass all the material operations an electoral process requires. Complementary administrative regulations going into the detail of the electoral operations are indispensable.

At the same time, when it comes to leaving these regulations to the executive power a universal mistrust is observed, all the more accentuated when the democratic system is less consolidated. There are two different solutions for this problem:

The most radical solution consists of entrusting it to a specific electoral body, which either does not form part of any of the state powers (by which such organs become somewhat doubtful, stemming from the classical separation of powers of Montesquieu, especially if they are included in the constitution itself) or has a rather parliamentarian setting.

A less extreme solution is to establish that these regulations of governmental origin be checked by the electoral bodies, either beforehand or afterwards. This is more characteristic of consolidated democracies and probably more respectful regarding the separation of powers and the role that both the executive as well as the judiciary powers play within it.

Codes of Conduct

The regulatory circle closes with the so-called codes of conduct. In a broad sense it can be said that no electoral system works without the existence of an implicit code of conduct among the political parties. This includes, for example, acceptance of the results, the unquestioned admission of the rules of the game and even some unwritten rules that regulate the electoral campaign, such as the exclusion of certain matters or forms.

In a more restricted and technically more correct sense, codes of conduct must be interpreted as a set of publicly-endorsed rules of behaviour among the political contenders in a particular electoral process. These rules often fill gaps in the regulations as a whole. They are usually strictly provisional, limited to one sole electoral process.

Nevertheless, it is not true that they are exclusively produced in countries emerging from non-democratic forms of government, because there are some significant examples of implicit codes in consolidated democracies. This happens, for example, when certain subjects that are considered to be common heritage are excluded from the scope of party discussions, and a formal declaration is made in this regard.

Although the problem stemming from their legal nature and compelling force will be referred to further on, it can be affirmed that they are more like real rules, insofar as their adversaries formalise them and subject them to a certain arbitration, under the auspices of an international organisation or, above all, an electoral organisation empowered to settle any disputes regarding their application.

Structural Principles of Electoral Regulations

This set of regulatory instruments (constitution, electoral laws, administrative regulations and codes of conduct), therefore, makes up the legal structure of electoral processes. The distribution of subjects that must be regulated by each one of them largely depends on non-judicial factors that have bearing on historical and political science determinants. It is difficult to establish general categories or internal rules of distribution. However, from a strictly legal point of view, there are at least three principles that could be considered in structuring the electoral regulations of a specific country:

First, there are elements which should be reflected in the constitutional text itself--namely, those referring to the right to active and passive suffrage and most probably the generic definition of some of the elements of the electoral system. However, electoral regulations should not undergo uncontrolled expansion by embedding every last detail in the constitution. The structure of electoral regulations do not become any more effective or adequate by being written into the constitution.

The main instrument of the regulatory structure is, beyond doubt, the electoral law. As such, it should be the result of extensive agreement and possess a considerable degree of permanence. However, from a technical or legal point of view, it might be advisable to distinguish between two sections of subjects which deserve to be treated differently.

• on the one hand, regulations referring to the electoral system and to the essential aspects of the procedure, which form the core, legally and/or politically may be subject to consensus over and above the simple parliamentary majority
• on the other hand, those aspects that not only do not require such a high degree of consensus, but this could in fact make the regulations too rigid and thus hamper their adaptation to new circumstances and/or the intervention of sub-state authorities that have to adjust them to specific territorial needs, although they have to be regulated by law

Administrative regulations that complement and adjust general rules to the specific circumstances of each process are inevitable and must be drawn up by the authorities that administer the processes. If it is decided to have electoral organisations whose only task is control, one of their duties should be to see to it that the law is upheld by the executive power. As there should be allowance for the intervention of the judiciary, it will seem preferable for the intervention of these bodies or organs of governance to take place prior to the approval of the regulations.

Constitution

Reasons and Functions of Constitutionalisation

It has often been said that in democratic systems electoral regulations are just as important, functional and tend to be just as permanent as the laws of succession in absolute monarchies.

In effect, insofar as being an instrument that imposed access to power in accordance with dynastic rules, the laws of succession were not considered modifiable by any specific king who reigned by virtue of these very regulations. For this reason Bodino believed that, along with natural law, they were the only limits to the power of absolute monarchs. In coherence, they were constitutionalised very early on and acquired a high degree of stability. For example, article 57.1 of the Spanish Constitution of 1978, which regulates the rules of succession to the Crown, literally comes from the Alcala Rules, Ordenamiento de Alcala, of 1217.

In a parallel manner and precisely because its function is the same--to ordain access to power peacefully--there is a dual universal tendency in the treatment of electoral regulations:

The most important elements of the system are constitutionalised, which make them unavailable to the ordinary legislator. Pro futuro delegating elements are introduced, so their development has to be by parliamentary law and often by qualified majority, seeking an integration of the main political forces in the elaboration of these regulations.

But over and above these legal considerations, it can be said beyond doubt (Noehlen) that there is great stability in the electoral systems. This is the case in the majority of the European systems, with the exception of France and recently Italy, whose basic lines have not been reformed since the victory of universal suffrage and in some cases, have even been 'recovered' after authoritarian periods between wars.

Empirical Study of the Scope of Constitutionalisation

Electoral elements that were introduced into the various constitutions, however, have not at all been uniform. We will try to establish some general categories by means of ten selected elements of the electoral system in a broad sense and their application to four different groups of countries. The following are the specific elements chosen for this empirical analysis:

• definition and characteristics of voting rights
• other dispositions of active and passive suffrage (age, ineligibility, etc.)
• total number of representatives
• constituencies
• electoral formula or principle (proportional, majority)
• form of expressing the vote
• dispositions on the electoral roll
• provision for institutions of control (other than ordinary courts)
• rules relevant to the funding of electoral campaigns
• reference to electoral laws, including their nature as a general electoral code and their rigidity in the face of reforms.

• member countries of the European Union (lower houses);
• main Latin-American Countries (parliamentarian and presidential elections)
• East European Countries
• other countries whose legal tradition is based on common law

Table A. Electoral Elements of the Lower Houses Regulated by the Constitutions of the European Union Countries

GUIDE TO THE CONTENTS OF THE TABLES

1- Definition and characteristics of the right to vote.

2- Other provisions on the right to active and passive suffrage (age, ineligibility factors, etc.).

3- Total number of representatives.

4- Constituency.

5- Electoral formula or principle (proportional, majority) .

6- Form of expressing the vote.

7- Provisions regarding the voters register.

8- Provision for control organs (other than the ordinary Courts).

9- Rules pertaining to the funding of electoral campaigns.

10- Remission to electoral Laws:

• remission
• nature of general electoral code
• rigidity towards reforms

Table 1: ELECTORAL ELEMENTS OF THE LOWER HOUSES CONTAINED IN THE CONSTITUTIONS OF THE EUROPEAN UNION MEMBER COUNTRIES (1).

NOTES:

(1) Great Britain has been excluded from this chart, due to the peculiarities deriving from the non-existence of a written constitution. Neither does a written constitution exist, nor do the materially constitutional regulations, such as the Parliament Act of 1911 and the Parliament Act of 1949, refer to the subject of elections.

(2) Finland does not possess one sole constitutional text, and it is organised according to various basic laws or constitutional laws, among which the Act on the Form of Government promulgated on 17 July 1919, stands out and is the one considered here. It has to be pointed out, however, that some constitutional regulations on this subject are found in the Parliament Organic Act (the last significant reform of which took place in 1993), along with the characteristic contents of some parliamentary regulations.

(3) The traditional French double round majority system by voting is, however, envisaged in the present Constitution, of 3 June 1958, for the election of the President of the Republic (art. 7).

(4) Just like Finland, Sweden does not possess one sole constitutional text, and it is organised according to several constitutional Laws of the Kingdom, among which the Act on the Form of Government, also denominated Instrument of the government (of which the last significant reform took place in 1994) stands out. This regulation is under consideration here.

Table B. Electoral Elements Regulated by the Constitutions of the Main Latin American countries

a) = regulations referring to the Lower House b) = regulations on the President of the Republic

Table C. Electoral Elements Regulated by the Constitutions of the Main Eastern European Countries

NOTES

1. Translated texts of the constitutions of Ukraine and Poland could not be found. (May 1997).
2. The following common traits can be pointed out:

1. Constitutional regulations on electoral matters are relatively scarce;
2. Remission to the electoral laws leaves the regulation of the essential aspects of the electoral processes and even in a significant number of cases, the principle of the election of the lower house representatives, to the latter;
3. Neither are specific constitutional organs of control or electoral administration envisaged in the constitution, nor is the funding of the political parties in the electoral processes regulated.

Table D. Electoral Elements Regulated for the Lower Houses by the Constitutions of Some Countries with a Legal Tradition of Common Law

CONSTITUTIONAL CONTENTS ON ELECTORAL PROCESSES

NOTES:

1. The states whose constitutions this table refers to, has one common element: they are all former British colonies (obviously, with the exception of Japan).
2. The date referred to, is the date of the last constitutional revision.
3. Some of the states do not have a constitution in the formal sense of the word, but they have a number of laws of a constitutional rank: Canada, New Zealand and Israel. Reference is made to such law with a constitutional rank that regulates the electoral processes for the Lower House.

Conclusions

The following conclusions can be reached from an overall evaluation of the facts noted:

All the countries considered have constitutionalised the definition and the characteristics of active and passive suffrage rights as a basic right of all citizens. It must not be forgotten that the history of electoral law--and democracy itself--is the struggle for universal, free, equal, direct and secret suffrage. In all basic regulations analysed it was considered suitable to embody this definition:

• in some of them, in the oldest democracies, because it reflects and consolidates the democratic progress that has been made
• in others, the most recent ones, as a means of a formula of solemn affirmation of democracy, which is no longer conceivable under any other form of suffrage

Practically all the constitutions analysed make reference to the law as the ideal instrument for the regulation of the rest of the electoral subjects. There are also a considerable number of countries--especially in Latin American but with examples in all the others--that envision, in addition, a qualified majority for the approval of this legislation and/or the regulation of the entire subject in one single law which will serve as an electoral code for elections as a whole held by direct universal suffrage.

The situation is considerably different, however, with relation to the elements of the electoral system in the strict sense of the word. Even though the majority of the constitutional texts regulate aspects such as the electoral formula, or principle, and the total number of representatives (38 and 36 of the countries studied), the number drops considerably (24) with reference to the constituency, which is a key aspect in the process insofar as it decisively conditions the application of the electoral principle. An even more striking fact is that only three constitutions (Ireland, Luxembourg and Sweden) include the form of expression of the vote, an element that defines the relation between parties and citizens when it comes to forming the area of electoral freedom, or personalisation of votes. This has perhaps been regarded as an element that is too sophisticated, especially in regulations drafted after an authoritarian period, in which the main priority is the strengthening of democracy through the political parties.

Regarding the procedural aspects considered, the following division can be made:

Very few countries outside Latin America make any reference whatsoever to the electoral roll. However, in many of them it is regulated in great detail.

Almost the same can be said about dispositions on electoral funding. Only Portugal and South Africa contain these in the form of general principles, as opposed to the detailed regulation present in many of the South American countries.

There is a recent tendency in very diverse regions to constitutionalise electoral control and/or administrative bodies for electoral processes. This phenomenon has once again reached its maximum expression in Latin America, due to the lack of professionalism, efficiency or legitimacy of the ordinary administration.

Typical Contents in the Constitutionalisation of Electoral Elements

In view of the above, one last thought comes to mind: does an ideal electoral content exist that should be constitutionalised? The answer is highly complex and should be the target of an analysis, paying attention to the historical, political and social factors of each country under consideration. However, from a strictly legal point of view, it can be stated that there is a certain risk of fossilising electoral regulations through excessive constitutionalisation of its elements. This risk is particularly serious in countries that draw up their constitutions following transition elections from an authoritarian system.

We began this section by pointing out the parallelism between succession laws and electoral laws and taking the regulation on the Spanish Crown as an example. It is worthwhile to point out a further parallelism. The regulation on succession of 1217 in Spain contains some discriminatory principles regarding gender, which would be impossible to apply to any other aspect of the legal system. An effort was made to maintain the regulation exactly as it was, and as a consequence it has become dissociated from social reality. There is no doubt that the same phenomenon could occur should an excessively detailed constitutional regulation be drawn up conditioned on the particular circumstances of the moment.

_

Electoral Law

Definition and Basic Traits The main regulatory instrument is undoubtedly the electoral law. However, from this point of view, the situation in the countries analysed is varied. It can be said that there is a certain tendency to incorporate all of the regulations that govern electoral processes through direct universal suffrage into one single text or electoral code. But there is no shortage of examples of countries where this subject matter appears divided into various regulatory texts, which refer, for example, to elections in different territorial areas or to different governmental organs, or even to some specific aspect within the same process, such as the composition and functioning of electoral bodies (see 'emc04.1'). The question therefore arises whether a minimum content is necessary for a regulation to be described as electoral. The answer is that one might, in effect, talk about a central regulatory core that should be included in these regulations, such as:

• elements of the basic right to active and passive universal suffrage, namely, an accurate determination of who may vote and be elected, how one becomes a voter and how one becomes a candidate
• conditions of the elections, which include a specific definition of the constituency, the electoral formula or principle and the form of expression of the vote
• organisational, procedural and territorial criteria--how and where voting takes place
• control mechanisms of the different procedural phases

• definition of the sphere of the regulations (which elections are affected by them)
• regulations referring to the electoral system (constituency, number of representatives, electoral formula, etc.)
• dispositions relevant to the right to active suffrage, definition and deprival of the right, regulations for the exercise thereof, including registration on the electoral roll
• dispositions on the right to passive suffrage, including the determination of who is eligible and who is ineligible, and the conditions for running as candidates
• regulations relevant to electoral administration (appointments, dependence or independence, procedures of operation, etc.)
• dispositions on the electoral campaign
• voting procedure(s)
• vote counting procedure(s) and announcement of those elected
• expenses and electoral subsidies

Administrative Regulations

Contents and Need for Administrative Regulations

No electoral law, however complex or detailed it may be, can or should be so comprehensive that it regulates every last aspects, like the determination of the various material elements used in an electoral process (ballot boxes, ballot paper, voting booths and a wide range of forms), the subsistence and travel allowances the electoral personnel are entitled to, the specific rules for the display and rectification of the voters list for each electoral process, the sending out of electoral publicity, etc. Each of these aspects requires regular adaptation or modification, usually for each election.

Therefore, these aspects--fewer in number in comparison with the elements discussed up to now--but essential for the smooth operation of the elections, have to be regulated administratively.

Authority That Promulgates Administrative Regulations

The essential problem of these regulations is determining which would be the proper authority to draw them up.

An electoral process is characterised by, among other things, the great number of administrative measures interpreted and applied according to the law which have to be put into practice in very short periods of time and which are, in addition, preclusive. For example, a delay in naming the candidates necessarily has an effect on subsequent electoral operations, perhaps even to the point of making them practically impossible.

Therefore, a dual scheme in which this regulation should be the responsibility of a different organisation from the one that handles the processes is neither operative nor are there any significant precedents for such a scheme. The fact is, however, that there is a large variety of electoral structures (independent, attached to the Parliament, to the executive Power, permanent, temporary, etc.). For display purposes and to greatly simplify, we can establish a functional distinction between two groups of systems from this point of view:

• those that choose to form an independent electoral body which also handles the execution and the control over the electoral process (as occurs in Costa Rica, Nicaragua, Guatemala and other Central and South American countries, as well as in a large number of African countries, Australia and New Zealand)
• those that have a dual system of electoral administration, where the electoral processes are executed by the general administration of the country, whilst the management and control of these very processes are entrusted to an independent organisation (Argentina, Spain, the majority of the European Union countries and some of French-speaking Africa, such as Senegal, the Central African Republic and the Ivory Coast)

In the countries where there are independent single electoral bodies this regulation obviously is adopted. At times, as in the constitution of Nicaragua, its configuration as a power of the state is carried to the utmost extreme, so its decisions are not controllable by any other power, neither by the judiciary nor by the constitutional court, where one exists.

This situation does not occur, however, in the dual systems of electoral administration. Within these, it is considered that regulation pertains to the executive power and must be controlled by the judiciary. This scheme, which reflects the most orthodox interpretation of the separation of powers, is complemented by the fact that, prior to its approval, the electoral development regulations should be subject to control of its legality by the electoral body, which is necessary and binding for the executive.

Both procedures tend to guarantee the same objective through different channels, i.e, to prevent the regulations from being partisan or not neutral in any aspects that could compromise the electoral results.

Precisely for this reason an effort is made to reinforce the ordinary controls envisaged for the regulations that emerge from the executive power by means of actions, in a different form and of different intensity, by the specific electoral guarantee bodies. This reinforcement does not always nor necessarily imply a lack of confidence in the control over the actions of the administration exerted by the ordinary judiciary. Due to the preclusive nature of each one of the phases already discussed, there is usually a need for each of the controls to take place quite promptly, something that is not always possible in ordinary judicial procedures.

Codes of Conduct

Distinctions Between Codes of Conduct

The expression, 'codes of conduct', could refer to different phenomena. Therefore, three kinds of codes would first have to be excluded. All of them affect electoral subjects and even the elections themselves, but exist in different contexts from the authentic codes of conduct that do form part of the legal structure of the electoral process:

In the first place, a set of rules that govern the activities of the electoral administration in the broad sense, cannot be described as a code of conduct. Thus there are general codes of conduct, as is true for Australian electoral officers, and codes that refer to specific persons that intervene in a specific sector, such as the vote counters by computer in the elections in Colombia in 1994. Within this chapter can be included the codes applied by different international organisations (e.g., for the electoral observers). This is a set of rules which aims to design a state of neutrality with regard to the contenders in the process for a number of people entrusted with their execution. Rather, due to their nature they can be assimilated into administrative rules of conduct for civil servants or to deontological ethics within particular professions.

Codes of a general nature set for political parties (not exclusively for electoral purposes) also answer to a different reality, starting with the United States and Canada. Even though they can be applied during the electoral period, which is in fact what happens, they bind the party that apply them to their own members/sympathisers and not to the other political parties (see Codes of Conduct for Political Parties.)

Lastly, we are also excluding the implicit electoral codes of action that exist in all democratic systems--a prior compromise that the election results will be accepted and, on occasions, other agreements, such as not referring to certain questions during the electoral campaigns. They differ from authentic codes of conduct inasmuch as they are not usually explicit, and least of all, publicised as such.

Characteristic Features of Codes of Conduct

What are the points that characterise an authentic electoral code? At least the following two:

• result of an agreement between political parties, in principle, for a specific election, although nothing prevents it from gaining a certain degree of permanence
• aims to complement electoral regulations and as such, they are characteristic of transition elections, with a basic objective to ensure that the electoral process takes place peacefully, preventing the abuse of dominant positions

Beyond these common points, however, important differences arise as far as their character and the extent of their binding nature are concerned.

Because of the participating subjects, the codes may be drawn up by the parties. They may also involve some type of international organisation, or even be promoted by the electoral bodies (see 'emc15b').

The latter possibility of codes of conduct promoted and controlled in their application by the electoral bodies leads us to one of the basic problems of them, i.e., whether they are voluntary or binding. In spite of the fact that it can be maintained, the codes must necessarily be voluntary (because they imply a limitation of conduct that is not prohibited by law and could have an effect on the basic rights of the contenders). An empirical study of the reality however (Goodwin-Gill) revealed at least three types of situations:

The first is in countries where the agreed code has been incorporated into the electoral law by the parliament, as occurred in Cambodia in 1992 (see Code of Conduct in Cambodia). In this case the question arises whether it actually continues to be a code of conduct in the true sense of the word, or whether, as it will appear, its incorporation into the electoral law means that it ceases to exist as such a code at all.

Cases where an agreement among the contenders includes certain sanctions for non-compliance in their provisions, without it ceasing to be a code of conduct, pose bigger complications. This is the case in the South African Code of 1992 (see Code of Conduct in South Africa) which envisages economic sanctions and even grants the electoral body in charge the possibility to exclude the candidates that do not adhere to it. In such cases, the codes of conduct acquire a marked and unmistakably regulatory content.

However, the majority of the codes are of a purely voluntary nature, in the sense that they do not stipulate any sanction for non-compliance. In such cases, they are unlikely to be considered strictly as part of the regulatory structure of the processes. Still, insofar as they are effectively fulfilled, they regulate very important aspects, de facto or by consensus, and they tend to acquire a binding power.

Contents of the Codes of Conduct

As far as the contents of the codes are concerned, they are, in general, rules that are aimed at:

• preventing the use of intimidation and violence
• establishing rules of behaviour during the campaign
• preventing the parties in power from abusing their position or power

Creation and Amendment Process

Introduction

Comparative constitutional law shows that, normally, the choice to draft a new electoral law is only decided upon in extreme circumstances, when there is a profound crisis within the power structures. This mostly happens in the case of a transition process from an authoritarian regime, a crisis that makes this new electoral regulation indispensable for organisational as well as for lawful reasons.

We will therefore make a distinction between:

• 'creation' of an electoral law, a term used to define the cases in which it is necessary to fully draft the electoral regulation of a country from scratch, as a consequence of a change in political regime, and
• 'reform', referring to adjustments to an electoral regulation that do not imply a change in political regime and are, therefore, relatively less comprehensive--even though they may imply the modification of important elements of the electoral system--insofar as some of the elements are absolutely fixed: those that have a bearing on the right to active and passive suffrage, to the participation of the political parties and to the honesty of the process, which preclude any valid comparison with the modifications derived from a change of political regime (see Practical Advice for Electoral System Designers.)

This distinction is furthermore confirmed by practical reasons related to the elaboration process thereof.

Insofar as electoral 'reforms' imply a much less severe crisis in the political system, they can be elaborated in greater detail and with active participation of the political subjects and administrative organisations in charge of the process.

On the other hand, the 'creation' of a new law tends to be a compelling need insofar as an effort is made to cover a gap in legitimisation as well as organise the new emerging power in a timely manner.

We will therefore deal with the two cases separately.

Creation Strategies

A country in the transition process to a democratic system must develop its own strategy for elections that often oscillates between two extremes:

In the first one, it may adopt what one could call a maximalist strategy. Here the starting point is the importance of the drafting process for an electoral law and the impact that this choice has for the acceptance of the law and the new system as a whole. For this, a dialogue among all the political forces is opened to try to reach the widest possible consensus. This is the point of view adopted in the document drawn up by the International Foundation for Election Systems (IFES) studying the transition processes in Africa in the nineties.

It concludes that the process was carried out most satisfactorily in countries such as Mozambique (see Reform and Electoral Process in Mozambique), Guinea-Bissau and Senegal where multi-party commissions were set up to create the electoral law. Thus, a broad consensus in this process is the most desirable way to start an electoral process and democratic transition itself.

However, we consider that this point of view needs to be explained in great detail, at least in relation to the first elections that initiate the transition process. This choice poses at least two drawbacks:

• In the first place, it could contribute to prolonging the provisional position of the authorities that have taken over power beyond what can be considered reasonable, with undesirable consequences in terms of their legitimacy, as well as from the point of view of the functionality of the new regime.
• In the second place, a law developed this way can provoke a certain 'illusion of representation', relatively frequent in transition processes, if the forces that take the initiative at first do not acquire electoral approval afterwards in the same proportion as the role they have fulfilled. Thus, it might turn out that the electoral law, in fact, lacks a representative basis, inasmuch as it will have been elaborated by parties that did not obtain sufficient representation in its application.

On the other hand, it can adopt what might be called a minimalist strategy. In such a case, the government prefers not to wait for the long process involved in the elaboration of an electoral law established by consensus and opts for changing only the provisions of the previous law most clearly related to the single party system. Often an expert commission is appointed, at times with international support, to perform this task. Such a strategy does however have some drawbacks:

There are several recent examples of inadequate or internally contradictory reforms, however, insofar as some of the less obvious authoritarian aspects of the previous system have not been modified. Problems of this type have been identified in Africa, especially in countries like Kenya and Gabon.

The clearest example of the disadvantages of the minimalist strategy is produced in the application of the electoral law of 18 November 1993 in the Ukraine (see Inadequate Electoral Law Reform Process in the Ukraine). This law retained many of the provisions of the previous Soviet regulations and is considered to be directly responsible for the failure to cover 32 seats needed to bring the Rada up to 450 members, in spite of four consecutive elections between 27 March 1994 and 10 December 1995. As prescribed by the law, the elections in constituencies where a vote of less than 50% of the voters list had been achieved or where the winning candidate may have obtained less than 25% of the votes were invalid. These provisions have been eliminated at the suggestion of IFES, who even mediated in the constitutional reform of 28 June 1996. It is evident that the 'oversight' by its writers of the difficulty to obtain the same participation rates in a democratic system as in an authoritarian system led to some clearly unsatisfactory results by transposing the precepts of the Soviet electoral law to the new Ukrainian system.

Another example of an inadequate electoral reform is the case of Chile (see Constitutional and Electoral Reform in Chile) in which Pinochet designed a strategy that tended to perpetuate his influence and power after the implementation of the democratic system.

Furthermore, most approved electoral laws seem to generate a kind of inherent resistance to reform, so it is not always easy to modify them in-depth. The Ukraine is also a case in point here, where the reform, despite obviously being necessary, only achieved political legitimacy through a constitutional reform which was found to be legally inaccurate.

This sort of universal characteristic of electoral laws described above leads to yet a third strategy, which aims to make the advantages of the first two strategies compatible. This is a synthetic strategy in which the government drafts provisional regulation aimed exclusively at governing the first elections. A mandate to draft a new electoral law directed at the parliament that is to be elected is incorporated in its very text. Examples of this strategy can be found in Africa (Burundi), as well as in the democracies of southern Europe. A particularly interesting case is Spain (see Reform of the Spanish Electoral System) where the essential elements of the transition regulations approved by the government in March 1977 for the election of the first democratic Parliament after the death of the dictator Franco literally became part of the Constitution, as the system designed within the regulations is taken up in the Basic Rule.

Finally, reference can be made to the situation that arises in countries where the transition process to the democratic system is very slow and gradual, through several elections that progressively introduce pluralist elements that are reflected in the electoral law itself.

This gradualist strategy, present for example in Morocco and Tanzania, is always the result of a certain dialogue or commitment between the forces in power and the opposition, which can however can be more explicit or less explicit. The more explicit it is, the more the reforms will tend to appear to be a commitment to transition each time they are made.

The case of Mexico (see Electoral Reform in Mexico) which has undertaken a gradual, profound process of electoral reform since the beginning of the nineties can also be regarded as falling under this category.

Problems in Amendment Process

The electoral laws of consolidated democratic systems are often subject to a ambivalent or contradictory vulnerability:

On the one hand, they are constantly the subject of political discussions and the mass media, and the most unjust and unfair aspects of the regulations are often pinpointed, especially the mediation they perform between votes and seats. A particularly meaningful example of this is the constant criticism of the English majority system because of its non-proportional nature. Often the accusations themselves even contain contradictions, as when a proportional system is accused of not being sufficiently proportional and creating an excessive gap between the voters and those elected.

An empirical study of the more consolidated electoral systems, however, shows great continuity among the elements of the electoral system in each country. With the possible exception of the French experience, a universal rule of behaviour can be introduced by which the electoral systems will tend to be consolidated in their basic elements, so that they will only be modified in the event of an overall crisis in the political system (like the recent Italian experience). This statement is compatible with the constant technical, minor or procedural adjustments that these very same legal texts undergo. Among the factors that can contribute to explain the basic politics of continuity of the electoral systems, there are the following:

In the first place, one could agree with Amato that nobody is prepared to change what is certain for what is uncertain and that an electoral system, whether good or bad, gives its main agents, the political parties, certainty regarding the way it operates. It is evident that from this point of view, even in the most democratic system imaginable, the interests of the citizens and the political parties will not necessarily coincide. These circumstances arise when it is proposed to open the list of candidacies or of preferential votes, choices desired by the citizens, but difficult for the political parties to accept. However, they are the ones who can modify the electoral law.

In the second place, it is also evident that those who can modify an electoral law are the party or the parties that have won under it (they often did so with bonuses of over-representation in the attribution of seats with relation to the percentage of votes obtained). In short, change should be promoted by the beneficiaries under the system in force.

On the other hand, there are historical factors that make change difficult. A kind of identification is produced by the citizens of a country with its traditional electoral system to which they assimilate democracy. The older the system, the greater the identification, which permits it to continue maintaining features that would hardly be admissible in a system designed in the present day. An example of this prevalence is to be found in the election of the president of the United States through a complex system of delegates. This phenomenon has also occurred at times when overcoming a dictatorship is identified with a return to an electoral system from the previous democratic period, as occurred in Germany and Italy after World War II.

Lastly, neither are the legal drawbacks that the reform of the electoral regulation poses negligible. As already pointed out in the foregoing paragraph (see also Constitution), the main electoral procedures are constitutionalized and consequently subject to the special protection of the constitutional reform. Furthermore, special majorities are often mandated for the electoral laws to be modified, which calls for the need of a broad-scale agreement between the political forces.

In spite of the foregoing, technical or minor modifications to the electoral laws are quite common. It can be said that there is a constant need for adjustment of the procedures of this type, not only in the new democracies, where the need for corrections is more evident, but even in consolidated systems too. The reason why this need exists, must be sought, paradoxically, in the extremely regulatory nature of the procedures, which makes them very inelastic, therefore calling for constant adjustments. These modifications have to be subject to guidelines of action:

On the one hand, due to legal and political needs, they must have widespread parliamentary support; even the most innocent of reforms will tend to be presented as an attempt to manipulate the will of the people.

On the other, it should not be forgotten that basically these are procedural reforms. In these cases, when the constitution or the electoral regulation envisages the existence of independent electoral organisations, whose mission is to act for the good of the organisation and the purity of the electoral process, the reform of the regulation has to have the approval of these organisations, one way or another. In fact, it is not uncommon for them to be the promoters of the reform (see 'emc020' and 'emc41'). The opposite situation might give rise to malfunctioning, which will be all the greater, the more independence these organisations are granted in the fulfillment of their duties.

For example, it is disputable whether the September 1997 reform of the Nicaraguan Electoral Law, against the express opinion of the Supreme Electoral Council, upon whom the organisation, handling and monitoring of the elections were exclusively conferred by the constitution (art. 168) was appropriate. Forgetting this reality could mean the condemnation of the reform to impotence, making it transitory, or laying the foundation for a conflict with unforeseeable consequences among constitutional organs.

Elements

The thirteen sections setting out the elements of an electoral process from a legal point of view comprise matters that can be classified into homogeneous blocks:

• The subjects that take part in the process. Documents that focus on them, are Voters' Qualifications, Deprivation of the Right to Vote and Voter Registration (voters); Candidates' Qualifications and Candidates Registration (candidates); Political Organisations (political parties); and Electoral Organisation (electoral administration, to which document Administrative Considerations also refers).
• The material operations of the process. Set out in sections Electoral Campaign (electoral campaign), Voting (voting), Publication of Results (publication), Electoral Boundaries (constituencies) and to a certain extent, Electoral Organisation (organisation).
• Lastly, legal means of control and the solving of legal conflicts and disputes, matters covered in documents Sanctions for Specific Electoral Offences and Conflict and Dispute Resolution.

Voters' Qualifications

The right to participate in public matters directly as a voter is usually regulated by laws of maximum or federal status, generally the constitution itself, since voting is one of the essential political rights. To be precise, the great majority of constitutions establish the age that citizens gain the right to vote in electoral processes and in referendums. The detailed regulation of other possible requirements, such as civil or political capacity, residence or the voters register may appear in the constitution or in the electoral laws of each state. The recognition of the right to vote is one of the aspects of the electoral system on which practically all constitutions contain specifications, insofar as it forms an essential part of the definition of what citizenship consists of. The great majority of them specify the required age. It is a matter of an essential political right, whose extension has been linked to the extension of the very idea of representative democracy. In effect, universal suffrage has historically been identified with the democratic principles to the point that it has become an indisputable element of any democratic regime (see Minority Provisions.) But throughout this evolution the requirements for the right to vote have often varied, from the voting right limited to males with certain levels of income, properties or education, excluding women and other males for various reasons, to the egalitarian generalisation of votes, the age required and the limitations based on gender, civil state and even occupation.

Evidently, voting has to be personal, in the sense that the electoral system has to guarantee that the vote expresses the preferences of each citizen. This requirement, which may seem elementary, poses problems in patriarchal societies, especially in the early stages of political transition, where democratic behaviour is not yet consolidated. In this regard the experience of Azerbaijan is paradigmatic (see Inadequate Control of the Personal Vote in Azerbaijan).

The requirements that define the right to active suffrage today, are age, citizenship and the full possession of civil and political rights. Along with these, registration on the voters list sometimes appears as a requirement to be able to assert the right to vote in each specific case. The place of residence at the time of voting, may have some relevance.

Nationality/Citizenship

Nationality, or rather citizenship, which implies a legal connection between a person and a state, has historically been the basic requirement for the right to vote. Just belonging to the political community permits participation in decisions on public matters.

Nationality and citizenship are not necessarily synonymous terms. The distinction gains importance in states where the population includes persons--citizens--belonging to various nationalities, from a historical, cultural or political perspective. One of the core elements of the sovereignty of each state lies in the definition of who its citizens are. This determination is sometimes made in the constitution itself. As a rule, this is the case when the latter has some problematic feature, such as in countries with high immigration, originating from a division of larger units, with different communities or for other historical reasons. If not in the constitution, then citizenship may be defined in federal or national laws. Each of them establishes precisely who the citizen is, in terms of birthplace, parentage or other elements and on what conditions nationality or citizenship can be acquired for other reasons, such residence in the country, their particular relationship with it, etc.

To these effects, citizenship is a legal and not a political concept. It is a status that is acquired according to the constitution and the laws of each state. In some countries, however, the possession of citizenship (if not born a citizen) is not sufficient for the right to vote, as in addition, a certain lapse of time is demanded.

The automatic relationship between citizenship and the right to vote is beginning to become more flexible; sometimes as a consequence of special cultural or historical ties; other times for migratory reasons and other times as a consequence of international agreements.

Normally, the sphere within which citizens of other states are permitted to vote is limited to municipal elections. Here it is acknowledged that foreign residents participate equally in local life and the reduced political scope of this does not prevent them from voting in such elections. The 1992 European Union Treaty acknowledges the right to all the citizens of the Union to vote in the local elections in each one of the fifteen state members. Precedents had already existed in the Nordic countries (Denmark, Sweden, Norway). One case in point is the recognition of the right of the citizens of the Republic of Ireland and other states of the Commonwealth to vote within the United Kingdom and vice versa in some of them.

In this evolution, reference has to be made to the regulation--in a sense an innovation--on the participation in the elections to the European Parliament (see Election of the European Parliament Members). Citizens of the member states may exercise their right to vote, regardless of which one of them they reside in. Likewise, citizens of any state are permitted to stand as candidates in another country.

Internal regulations that grant nationality may give rise to conflicts, as is currently experienced in certain states emerging from the former Soviet Union (see Minorities Deprived of the Right to Vote in Latvia). The application of a criterion that restricts citizenship to the members of certain nationalities (in a historical or cultural sense) has in fact deprived relatively numerous groups of their political rights.

Residency

The fact that people have their residence in a particular country can be relevant in two ways:

• in the case discussed in Nationality/Citizenship, in which the citizens of other states, but residing in the country, may be entitled to vote in the local elections
• the extent to which their residence either within or outside the country affects the citizens themselves
The place of residence within the country is the determining factor for elections on a local or regional scale, and may be for registration on the voters list. As a rule, in regional or countrywide elections, it is not always mandatory for the citizen to in fact reside in the country. The law usually provides procedures for them to vote by mail, at consulates or at special venues (the case of high-ranking military officers or civil servants outside the country).

But there are examples where this is not so, such as in Italy, where the personal presence of the voter is required in order to be entitled to vote. This issue is of great importance in countries with a high number of emigrants, for reasons that are not only quantitative. In countries where prior registration on the voters list is required to vote, but it is left up to the citizen, prerequisites are established for access to the voters list, so as to avoid fraud or duplicate voting (such as a minimum period of residence in the place).

Instances which could make the place of residence irrelevant for voting purposes are beginning to emerge, such as voting through cash dispensers already put into practice in Costa Rica. It must be noted though, that the place of residence of the voter is important, above all, for the determination of the constituency in which their electoral preference is to be counted and not just to decide at which polling station voting should take place.

The place of residence within a country can have important repercussions in states made up of several ethnic groups or nationalities. Legal rules that establish which citizens have to vote within each administrative or electoral district of the country should guarantee a fair distribution of the respective populations. This is an issue which is not disputed in consolidated democratic states. Nobody disputes the elaboration of the voters list based on rules on valid residence in Scotland, Quebec or the Basque Country. But it could raise serious problems, for example, in some of the new states that have emerged from the former Soviet Union, in which a criterion of ius sanguinis predominates for the granting of nationality and the right to vote, regardless of the place of residence. The use of this criterion without heeding those employed by the other states with which some of its inhabitants have some tie or other, has given rise to 'statelessness' to such an extent that in some of these countries (e.g., Russia), the birthplace (ius solis) and not national or family origin is the criterion used.

Age and Civil and Political Rights

Age

The age required for the right to vote has, in a way, evolved in a parallel fashion to the universalisation of suffrage. Historically it did not always coincide with coming of penal or civil age, since, at the same time, special requisites regarding income or social class were demanded. So a relatively higher age was required (around twenty-five). There have also been examples where a different age was established for men than for women. At present, however, the greater majority of states set the age to be entitled to vote at eighteen.

A study completed by VallÈs and Bosch, covering fifty-nine countries, revealed the following national age requirements:

• forty-nine states, including the majority in the European Union and the United States: 18 Years
• Iran: 15 years
• Brazil and Nicaragua: 16 years
• Austria: 19 years
• South Korea, Japan, and Switzerland: 20 years
• Bolivia, Malaysia, Pakistan, and Singapore: 21 years:
It must, however, not be forgotten that, in any event, in a considerable number of countries, a higher age is often demanded for some of the elective functions. This is generally the case in the election of the members of the lower houses, and it is not uncommon in the election of the president in presidential systems.

The decision about which age to establish is a constitutive element of the right to vote usually taken up in constitutions. There is a universal trend to homogenise this age with the coming of civil age, even though sometimes differences remain with regard to the penal age.

Full Civil and Political Rights

Civil capacity: One of the consequences of declaring that a person is unfit to engage in civil activities or decisions is the correlative deprival of their right to vote. Voting is individual and implies the capacity of the citizen to shape and express rationally their choices in an election. But the majority of the legal systems envisage the possibility of a citizen being declared unfit due to serious mental illness or for other similar reasons. When it is a declaration by a judicial authority or another body with sufficient jurisdiction, a limitation of this nature does not cast any doubts on the honesty of an electoral process, as long as, in addition, it can be revoked should the person declared unfit recover and be deemed 'fit.' The opposite case does, of course, arouse doubts, i.e., non-democratic systems in which this or any other variety of limitation of civil and political rights have been applied to silence of the opposition.

Deprival by penal sentence: The deprival of the right to vote as a consequence of a penal sentence is a different issue. Although the deprival of this right as a result of activities of a political nature is inadmissible, as non-democratic states try to do at times, the majority of the countries envisage the deprival of the vote in the case of convicts for serious offences (by final judicial ruling). This is normally a cumulative penalty, i.e., not the main penalty for the offence.

Traditionally, this cumulative penalty was also added to penalties for given types of mercantile offences: criminal bankruptcies, fraud, abscondence, etc. Within the very logic behind restricted voting, by which only those who had a certain income or educational level were entitled to vote, convicts were deprived of their vote on the grounds of certain offences of a financial nature. The latter implied a breakdown of the principles of good faith and mercantile stringency which were ascribed to the orderly merchant or to the good father of a family that the old-fashioned codes took to be the archetype (and restricted) figure of the citizen. In a system that only permitted participation to those whose income attributed an undoubted interest in public things, whoever committed fraud or serious offences in mercantile traffic had to be excluded from the vote. These exclusions are usually found in both the electoral law and the penal, procedural and even mercantile codes in the subsisting residues of the exclusions indicated above.

Deprival for political reasons: There are historical examples of the deprival of the right to vote because of activities performed in non-democratic regimes that, in any case, require some procedure to guarantee legal certainty each time it is applied (such as the Nazis and/or private collaborators on the right to vote after World War II).

Exclusion of certain officials, religious ministers, etc.: During the forming of the liberal states in the 19th century the exclusion of certain categories of public officials and especially of military officers was not uncommon. This stemmed from the idea that it contributed to assuring their neutrality. There are examples of extending this prohibition to religious ministers or even to citizens of certain religions (in the United Kingdom up to 1832).

Registration

The requirement that the citizen must be registered on the voters list is different in nature from the previous ones. The voters list, or register, is a list of the citizens who have the right to vote, i.e., who possess the requirements regarding nationality, age, etc., and reside in the requisite territorial area. This is an essential element in each electoral process, since the suspicion that there may have been irregularities in its elaboration has a real effect on whether the results will be considered legitimate. So much so, that references to the elaboration, maintenance and control of the voters list are abundant in countries whose constitutions have recently reformed their electoral systems or undertaken democratisation processes.

Citizens with the right to vote are incorporated into the voters list in accordance with three systems:

• the creation of a periodic list
• the elaboration of a continuous register
• the utilisation of the register of births, marriages and deaths

  All of these are analysed in another section of this project (see Definitions).

  Reference to the Compulsory Vote

  The survival of the concept of the vote as a duty, or, at least, as a right of a political nature, compulsory up to a certain age in some constitutions (e.g. Belgium), has a great influence on the matter we are analysing (see Minority Provisions and Voluntary versus Mandatory Registration).

  It is a duty sui generis whose origin is easy to determine in the concept of being the possession of a national community whose very nature makes the vote something more than an optional right. Citizenship also determines duties and participation in public matters is, at the same time, a right and an obligation to each citizen. There are sanctions for non-fulfillment of the duty of voting that could be quite serious (fines, certain disqualifications, etc.).

  It is, however, a peculiar, weakened duty, due to the confluence of at least three reasons:

  • because of its residual nature: it subsists in a relatively small number of countries
  • because the legal consequences of non-fulfillment is moderate in comparison with the non-fulfillment of other duties, such as the consequences for not completing mandatory military service
  • because the political reality itself, seems to be weakening the legitimacy, insofar as abstention levels are gaining more and more political significance

  Deprivation of the Right to Vote

  Participation in electoral processes is a constitutional right, in its dual dimension of active suffrage (the possibility to vote) and passive suffrage (the possibility to be elected). The deprival of the right to vote must observe certain conditions in democratic regulations:

  • must scrupulously observe the principle of authenticity--it can only be owing to a cause which is pre-established in legal regulations;
  • insofar as the legal regulations limit basic rights, they must be interpreted by all legal professionals in the strictest way, limiting their scope to the cases that have been explicitly pinpointed, without there being room for any analogical amplification to situations that are not expressly envisaged;
  • even within the cases clearly predetermined by the law, the principle applied upon interpreting them must be in accordance with the constitution (or most favourable regulations for the basic right to be fully enforced), in the sense that preference must always be given to a factual interpretation that favours the full participation of citizens, rather than an interpretation that might impede it;
  • must furthermore be of non-discriminatory application, so that in the face of similar situations, the reasons for exclusion will be applied equally, without any distinction whatsoever regarding the subject;
  • must answer to the achievement of a more free and democratic electoral process, i.e., exclusion from the right to active and passive suffrage in democratic regulations can only be understood from the objective that deprival of any right of specific citizens will be in pursuit of an enhanced practice by the larger society of citizens;
  • must be an independent control over these decisions, i.e., depending on the system, either the electoral authority or the judiciary will be in charge of this.
  Under the conditions cited, it is admissible for democratic systems to exclude some of their citizens from active and passive suffrage. In section Voters' Qualifications the various causes that may determine the deprival of active and passive suffrage, have been set out in great detail, so it is not necessary to repeat them here.

  However, it does seem appropriate to clarify these causes by focusing on their purpose, and from this point of view, the following can be distinguished:

  • legal reasons (see Legal Reasons for Deprivation)
  • political reasons (see Political Reasons for Deprivation)
  • administrative reasons (see Administrative Reasons for Deprivation)

  Legal Reasons for Deprivation

  Within this category, the following have to be included:

  • legal reasons for the deprival of the right to active and/or passive suffrage because of a firm legal sentence, whether it be as a main or as a cumulative penalty, whose purpose it is to prevent those who have committed certain crimes from exercising their right to suffrage, insofar as that is what the sentence determines, for the duration
  • those pertaining to the civil disqualification of anyone who has been declared unfit by judicial decision or admitted to a psychiatric hospital for being considered unfit to practice their right to vote in freedom and with responsibility as, if they were to vote, they would distort the overall results of the elections

  In short, all those who are considered in a democratic society unfit to vote, whether it be because of moral disapproval, criminal conduct or because of an obvious incapacity to do so with freedom, fall under these causes for the loss of the right to vote.

  Political Reasons for Deprivation

  Under this heading, two different types of disqualification can be included:

  • exclusion from the right to vote as a consequence of activities carried out under the previous regime, existing in some countries in transition, already referred to in the foregoing Voters' Qualifications

  In reality, this is a variation of deprival for criminal causes, which means that in order to be admissible, it must be a consequence of a judicial declaration and not of a mere general political declaration.

  • when the heads of certain state organs are excluded in order to guarantee the separation of powers

  In monarchies it is very common to consider ineligible not only the king, because of his function, but also anyone else who has the remotest possibility of occupying the throne as a consequence of their position in the dynastic order. The same may apply to judges, members of the constitutional court, the ombudsman, where this office exists, the attorney general, and others. The ultimate aim is to ensure the correct and orderly functioning of the state as a whole, and avoid undue or prejudicial intervention in the electoral process by heads of state or other powerful government officials.

  Administrative Reasons for Deprivation

  Under this heading, three different types of ineligibility can be included:

  • a number of factors of ineligibility, existing in all states, in an effort to prevent anybody from participating in an election from an advantageous position which may cause or influence citizens voting in a manner which is not free and, in short, to prevent fraud in the results

  The specific cases included in the different regulations under this section, are very varied, from the prohibition of re-election in many presidential systems to the loss of the status as members of the national assembly, along with its consequent prerogatives, as from the moment the elections are announced in parliamentary systems.

  • cases of ineligibility as a consequence of holding specific relevant administrative posts, especially in public organisations which are directly related to the process (members of election commissions, the electoral registry, those in charge of public media)

  The presumption is that, regardless of the personal attitude of the subject, their mere participation in the electoral process whilst holding such a position will distort the results. These cases differ from the previous ones in the sense that the citizen can regain his eligibility by simply resigning from the post, although it is also common in comparative law not to attach any value to a resignation which occurs immediately before the elections.

  • exclusion of certain officials, especially military and judicial officers and ministers of religious denominations, characteristic of 19th century regulations, but with perfectly clear vestiges in present-day constitutions and laws.

  Candidates' Qualifications

  The requirements for eligibility do not always coincide with the requirements to vote. Although the right to passive suffrage has historically evolved along the same lines of universalisation as the right to vote (or the right to active suffrage), some differences subsist that make it somewhat more restrictive. Consequently, the voters do not always identify with those who are eligible to run for office.

  Nor do those who may aspire to be eligible necessarily coincide with those who do in fact stand as candidates. To put forward a candidacy, passive electoral capacity is one of the requirements, but not the only one.

  At the outset, it can be said that the democratic principle demands that the requirements for eligibility be the same as for a voter: citizenship, being of age and the full possession of civil and political rights. So any further demand must specifically be envisaged in the constitution or in the law and be sufficiently justified in the execution of constitutional values to explain such limitation of fundamental rights to specific categories of citizens.

  In spite of this, it is evident that the majority of systems demand certain requirements or establish some limitations. This difference can be owing to various reasons:

  • guarantee neutrality in the electoral process of persons who hold representative positions (the king, those who already hold certain public posts, judges, active military officers, and others.)
  • demand certain special requirements that aim to guarantee maturity (through a higher age than the age required to vote)
  • aim to ensure that the person legitimately belongs to the community--completed their military service or possess the nationality of origin
  • exclude anyone convicted for serious or specific offences for similar reasons
  • protect the interests of the community, by disqualifying anyone who, if elected, could be faced with conflicts of interest due to their economic relations with public entities
  • exclude with roots in the political or social history of each country, such as the exclusion of ministers of particular influential religions in certain countries
  The following sections examine the requisites for eligibility (see Minority Provisions, Special Mechanisms for Women and Party and Candidate Registration).

  Citizenship

  Although the general trend is to extend the right to passive suffrage, or candidacy, to all citizens, some limitations exist in cases where the person does not have it by birth but, rather, by naturalisation. Usually, the limitation is temporary and reduced after a few years, though in the American system, for certain posts, such as the presidency, it tends to be permanent.

  There is no shortage, however, of exceptions to nationality being demanded as a requirement for passive suffrage. This is the case in some of the northern European countries and Paraguay, which do not demand it for the respective citizens in the municipal elections and, on a higher evolutionary level, the member states of the European Union (see Election of the European Parliament Members). In each one of these, along with the recognised possibilities for local elections, a national of any of the Union States can stand as a candidate for the European Parliament. The functions of the Parliament are not yet comparable to those an equivalent chamber in a federation would have, but it is an important step in the gradual constitution of the right to supranational suffrage in the European framework.

  The Nordic and European Union experiences in the local sphere also point in this direction. The possibility of voting is granted to foreign residents in the municipality, regardless of their nationality, so having actually settled down and personal interest thus outweigh the limitation ex lege to the nationals, characteristic of the traditional concept of citizenship.

  Age

  There are numerous examples of countries where the age required to be a candidate is higher than the age required to vote. In a survey done on data on thirty-six states obtained from the Inter-parliamentarian Union, VallÈs and Bosch show that this requirement exists in twenty-four of them: Argentina, Austria, Belgium, Bolivia, Brazil, Chile, Costa Rica, Ecuador, Estonia, United States of America, France, United Kingdom, Greece, Hungary, India, Israel, Italy, Japan, Nicaragua, Norway, Russia, Switzerland, Uruguay and Venezuela.

  It is usually justified as a demand for greater maturity, experience and judgement required in order to hold the office or representative post. In fact, although the reason is similar to that which was raised historically in support of restricted voting, socially speaking, this restriction is less disputed.

  When it comes to the election of representatives of the upper house (in two-chamber systems) or of a non-executive presidency, the reason for the age difference is often found, rather, in an effort to distinguish a function with very limited authority by strengthening the appearance of experience or moderating tendencies of those who might be elected.

  Public Post or Office

  The exclusion of persons holding certain public offices or posts can be due to vastly different reasons.

  In some instances it is to keep certain state functions out of political disputes that are declared in competitive elections of a general nature. Such is the case of exclusion of kings and their heirs, up to a certain degree, or of court officials or members of organs in charge of constitutional matters.

  One particular case is that in legal systems, judges and magistrates form part of a civil service career. This is to assure their neutrality in the exercise of public power, which is why they are sometimes compelled to take leave of absence from judicial work before being able to stand as a candidates, or even for a certain period of time following their term of duty if elected, or after the elections, should they not have been elected.

  The prohibition on standing for parliamentary or presidential elections also affects those who hold certain positions or fulfil public functions, to guarantee their neutrality (and the appearance of neutrality) or to prevent the abuse of their functions, with variations in each system. Obviously, it is not possible to try to stop civil servants from participating as voters or citizens in the electoral processes, as was often the case in the nineteenth century. But the limitation with regard to the right to passive suffrage is maintained. This rule, which is also applied to those who have been appointed to public positions implying political confidence within the administration, does not normally apply to members of the government, in which their capacity as members of the government outweighs their responsibility in charge of the former.

  Attention should also be paid to the case of active military officials, who are subject to some reinforced limitations compared to civil servants. In the latter case the limitation is reduced to a temporary leave of absence, but the general rule in the case of military officers is that they have to leave active service for good before being able to present their candidacies. They are, therefore, deprived of all possibilities of resuming their military careers again. This limitation is aimed at guaranteeing the subjective neutrality of anyone forming part of the armies, as well as the necessary objective neutrality in an institution that must also steer clear of general political conflicts.

  Another limitation is the one affecting those who have already held the presidency for a certain number of terms. It appears in systems in which the presidency has merely had representative or moderating attributes (Italy, Germany), as well as in presidential systems in which the president, as head of the executive power, is one of the key figures of the political power. In some cases, even re-election is forbidden (Mexico); in others, the possible number of terms is limited to two (the United States of America) or holding office for more than one or two terms consecutively. The origin of this limitation can be found in the configuration of presidential powers in the emergence of republican systems, in contrast to the executive power that was vested in a monarch, without any further temporary limit than the lifetime of each monarch.

  However, the possibility of successive re-election is common in presidential regimes whose democracy is doubtful, so the executive power in fact becomes lifelong. This was the case in various South American countries at different times in history, as in Paraguay, for example, during the Stroessner regime. Along the same lines, constitutional reforms that increase the possibility of successive presidential terms in countries where the head of state holds extensive powers may be cause for concern.

  A lateral manifestation of this prohibition on re-election, is that, to a certain degree, relatives of a previous president are forbidden from standing as a candidate for the presidency in numerous presidential states (Mexico, Bolivia, etc.).

  Finally, some limitations on the right to passive suffrage based on social or historical peculiarities still exist. Priests or other religious figures are often excluded in countries where one or several faiths historically had great influence or actively participated in social and political conflicts. Historically, the French Revolution or the influential Soviet regimes can be recalled. This is also the case with many Latin American constitutions (among others, Mexico, El Salvador, Ecuador, Paraguay, Honduras, Bolivia and Guatemala), perpetuating a 19th century Spanish tradition. On the other hand, there are the theocratic regimes, although these elections (and, by implication, the regimes themselves) can hardly be considered democratic.

  Yet, numerous Latin American constitutions stipulate the prohibition of passive suffrage to anyone who may have actively participated in armed revolts against constitutional governments or in de facto governments and dictatorships that emerged from the success of such revolts. An example of this is article 186 of the Guatemalan Constitution of 1985. Such exclusion is absolutely justified from the point of view of values, but it is not easy to find one sole conclusion encompassing all the historical and political peculiarities of each case. In this regard, the inevitable need to classify the conditions of democratic restoration in cases where it is produced by means of an agreed transition (Chile), or the social or political support manifested afterwards in some democratic elections in other countries (the case of Hugo Banzer in Bolivia) may be kept in mind.

  Professional Activity

  Numerous electoral systems forbid anyone who has certain economic relations or relations of interest with public administrations from standing as a candidate--licensees of public services, contractors, etc. This prohibition is designed to protect the neutrality with which officials should act, that is, avoiding situations in which a conflict of personal interest of the person elected and the area of decisions for the public interest he may be involved in could arise because of his position. This could include decisions on the renewal of certain concessions, decisions regarding which company a public service or contract should be awarded to, urban reclamation of land in which a land owner or a contractor elected as mayor may intervene, etc. Examples incorporated constitutionally are abundant. Of a rather doubtful nature, but closer to these cases of economic interest than sanctions for criminal offences, is the prohibition of debtors of public finance from standing for office (or, in the formula of the constitution of Honduras, its bad debtors).

  Criminal Sentences

  The deprivation of the right to passive suffrage due to a sentence in a criminal trial may be because of offences of a specific electoral nature or any other offences. In the case of electoral offences, the justification is evident. Someone who has committed a serious act against the rules that govern the democratic elections does not deserve to be a legitimate candidate for public office, much less actually elected. In the second case, though, a distinction must be made between instances where the deprivation of the right to candidacy is a cumulative penalty as a consequence of a serious offence and those in which it is a penalty related to the type of offence committed. To a certain extent, someone sentenced for a serious offence is separated from the community while serving the respective penalty. It would be an obvious contradiction if such a person could be elected to carry out relevant public functions. But some cases in which the ban has a different origin, still remain (like those sentenced for certain offences against the economic order, fraudulent bankruptcies, etc.). According to 19th century tradition, the good citizen was essentially a good father of a family and honest in mercantile matters. Any citizen who committed an offence that implied any degree of fraud (fraudulent bankruptcy or concealment of assets) defiled the economic or social order to such an extent that their exclusion from the social structure was logical and, therefore, also from the possibility of actively participating in public affairs.

  Gender

  The equality of women in the right to passive suffrage has been parallel to the process of equality in the right to active suffrage. But the fact that female presence in eligible positions continues to be proportionally lower than men has lead to it being considered suitable to include positive action measures in favour of increasing the number of women elected in some regulations.

  In some cases, mere internal agreements are adopted by one or several of the competing political parties, or action is instigated by political groups proposing the support of female candidates or lists where they have a higher presence. But there are examples, in limited areas, where the aim has been to favour a proportionally larger presence of women by introducing minimum female quotas (in the recent Italian Electoral Law, what has come to be called a list of parity has been established, i.e., political groups must present their lists by alternating male and female candidates).

  Discussions on these affirmative actions arise from arguments focused on the principle of equality. Those who are opposed to them, set out from a strict interpretation, preventing one or some groups of citizens from being favoured. On the other hand, supporters of gender equality oppose reasons of material equality compared to the inequality that the system of formal equality brings about.

  Electoral Campaign

  Historic limitations on the right to passive suffrage to those who belong to certain races or certain ethnic or cultural groups have been eliminated in systems that deserve to be considered democratic. Nevertheless, cases still persist in which particular posts are reserved for such groups.

  These are affirmative actions aimed at assuring representation of minority groups. Examples can be found in the constitutions of India and some of the states that form part of the Indian Federation (see Reservation of Number of Seats for Minorities in India), Canada (see Communities of Interest in Canada), and some Latin-American countries.

  One must distinguish between provisions which, in effect, aim to assure the representation of specific groups from those which, in reality, reflect a negative discrimination that should be repudiated. One example of this was the South African apartheid regime, in which two special chambers were incorporated, one for citizens of Indian origin and one for other ethnic groups, but, in any event, blacks were excluded.

  The reservation of seats and candidacies to certain ethnic or cultural groups is aimed at guaranteeing the presence of some members of those groups in the relevant chambers. This is an exception to the modern conception of representation, in which the those elected are representatives of the nation and not of sectors, communities or cultural, political or economic groups. However, some of the cases quoted actually reflect a constitutional aim to integrate defined communities that might otherwise run an obvious risk of political marginalization. A common way of avoiding this possibility is to limit positive discrimination to a period of time during which the cause that justified it must be overcome.

  Incompatibility

  Incompatibility implies a limitation of access to representative positions that has no bearing on an essential problem of the right to passive suffrage, but instead the possibility of a person who already holds one public position gaining access to another. This may be owing to a position held by the elected person beforehand or to a subsequent election or designation. In either of the two cases of originating or ensuing incompatibility, the problem lies in the difficulty or impossibility to perform effectively, with sufficient guarantees of dedication, impartiality or neutrality. The extent of incompatibility varies from one country to the other, reflecting the peculiarities of integration among the various powers and institutional levels. The separation between the executive and legislative powers is obviously stronger in presidential systems, manifested in the radical incompatibility between the presidential and the parliamentary functions. Even belonging to the government and to either of the chambers, becomes incompatible, very much in contrast to the parliamentary systems. Within the legislative branch, the upper house of one part of two-chamber systems takes on a territorial representation, which means that their members can be representatives of the regional chambers at the same time. The general rule in the executive branch, though, is that it is incompatible to hold government posts on more than one level (municipality, regional and national government), but exceptions do exist, such as the possibility of accumulating these capacities in France. When this kind of incompatibility is encountered, the normal consequence is the obligation to choose either one or the other within a certain period of time from when the incompatibility occurred.

  Candidates Registration

  Anyone that has the right to participate in an election as a candidate (because they have the right to passive suffrage and have fulfilled certain additional requirements) and wishes to do so, should formally communicate this to the authority in charge of the electoral process. It is up to the latter to verify whether they actually do meet the requirements and publicly name the candidates that will that compete in the relevant election.

  The registration and naming of the candidates therefore fulfil several functions:

  • They permit verification of whether those who wish to stand as candidates, meet all the necessary requirements.
  • The contenders in the elections are formally named.
  • They imply the recognition of a set of rights the contenders are entitled to: to obtain certain forms of public aid (financing of the campaign, presence in mass media, use of premises or public installations, etc.), depending on the case.
  • They lead to all the physical preparations that have to guarantee the smooth running of the elections.
  As a rule, over and above the right to passive suffrage, certain additional requirements are demanded from those who wish to be named as candidates. Thus an effort is made to ensure the seriousness of the candidate's aims, as well as to avoid a proliferation of candidacies without the minimum structure required to compete in the elections, which would serve no other purpose than to create confusion and increase the public resources needed for the electoral process, costly as it is.

  Thus, proof of minimum political and social support is required, a manifesto by a party or political group upon presentation or, where applicable, a certain number of citizens' signatures.

  In addition, it may be necessary to justify what influence the candidate has in the constituency he wishes to stand for.

  Often a deposit is demanded, which is relinquished should the votes received be so sparse that it proves the weakness of the candidacy, though in no case should it be such a burden that it literally limits electoral participation.

  Candidates' Presentations

  Although several possibilities are permitted within electoral procedures, normally candidates are proposed and supported by the political parties (see Party and Candidate Registration).

  This occurs for reasons that are inseparable from a representative democracy, which not only pursue fair representation of the voters, but also the forming of majorities with sufficient electoral support to permit sufficiently stable governments.

  The political parties answer to this need because of their capacity to integrate candidates and political support structures at a higher level than each constituency.

  Common criticisms in consolidated democratic systems because of the regular problems within the parties include:

  • excessive influence or power of their internal structures or machines
  • professionalisation of those who are involved in politics, thus making it difficult for alternatives to emerge
  • predominance, at times, of the furthering of personal interests of those who form them as opposed to common interests perceived by the electorate
  • the growing gap separating them from the common citizens for these reasons

  These problems, however, must not make one forget that the function of the political parties is irreplaceable, however much the defects observed in their functioning need to be solved for the good of the democratic system.

  In a sufficiently articulated, open democratic society, a party system warped by any of the ways mentioned faces a dilemma--either it is capable of evolving and solving the problems for the electorate in a perceivable manner, or public criticism will gradually lead to a loss of confidence in it and perhaps even in its legitimacy. Opposition parties will grow or, if there is no sound alternative, abstention will increase, until new political parties or groups emerge that will weaken and probably end up replacing those that resist change.

  Aside from political parties, candidacies may be proposed by coalitions or groups of parties, with formalities of varying content and intensity in the different countries. Contrary to what happens with post-electoral alliances, those established prior to the elections may have legal influence, e.g., preventing the parties that make them up from proposing their own lists in the same constituencies.

  The proposal of independent candidacies of parties or coalitions is a third possibility. In fact, depending on the area in which the elections are taking place and the size of the constituency, this is more difficult because of the complexity of the pre-election activities and the resources needed for the campaigns.

  It is obviously simpler and more common for independent candidates to stand in local elections or in smaller constituencies. The exceptions to this generalisation normally show that only outstanding financial resources (e.g., Ross Perot) or being well-known to the masses beforehand (e.g. Vargas Llosa in Peru) permit independent candidates to overcome the barriers that impedes recognition by the voters.

  Loyalty to the Democratic System

  When addressing the question of the degree of loyalty towards the democratic system that can be expected from the political parties competing in elections within it, the following can be distinguished:

  • Countries which, following a totalitarian experience, forbid the mere existence of parties that supported such regimes and monitor the possible reappearance of others with an anti-democratic ideology (e.g., Nazi Germany or Fascist Italy) through specific bodies (e.g., federal office for the protection of the constitution);
  • In other cases, through an evolution from non-democratic systems, the old single parties have been transformed, at least accepting the new democratic system and taking part in the elections according to its rules;
  In some cases they are, moreover, strongly established parties, speaking from an electoral point of view, such as those which have followed the former communist parties in many of the countries that were governed by them. In some of the new democratic states, they have obtained majority governments (Rumania, Ukraine) and in others, the parties that emerged from them are the main opposition parties (Russia, Poland) or carry relative influence (PDS in Germany).
  • On the contrary, there are abundant examples of single parties in non-democratic systems that have disappeared or have become irrelevant, inasmuch as free elections have proven their lack of citizen support (the case of Spain in its transition to democracy.);
  • Lastly, reference has to be made to the democratisation processes in countries that have experienced guerrilla or open warfare and in which pacification has meant the establishment of a new democratic system that has integrated some of the contending groups (El Salvador, Colombia, Nicaragua and other guerrillas in South America).
  Evidently, parties that wish to participate in democratic elections are obligated to accept and observe the constitutional system and the democratic rules, not only to attempt to gain access to the government but also when it comes to governing it, should this occur. The minimum limits of this loyalty are respect towards the rule of law, constitutional rights and the procedures that govern the actions of the public powers and the institutions of the democratic state.

  Nomination

  The decision within the parties on the nomination of the persons who will form part of each candidacy is a very relevant issue in a representative system. The constitutional function of the parties compels them to observe more demanding internal democratic rules than those which govern associations in other areas of private mercantile or social life. This is, of course, to assure an internal democratic procedure, without prejudice to leadership characteristics (even charismatic) that necessarily come to the surface within the political organisations. This prerequisite is manifested in various forms depending on the historical and political circumstances of each country.

  One of the procedures through which an effort is made to limit excessive influence of the party machines is the selection of candidates by means of prior internal elections, whether they are limited to the members of each local section of the party or are open to citizens voluntarily registered as their supporters (i.e., primary elections). These are two clearly different cases. The democratic election within the party itself has the virtue of forcing a certain transparency and of favouring open discussions about candidacies. But, in reality, it is only an assurance of internal democratic participation affecting the militant members of the party, and the nomination of candidates remains in the hands of the parties. The primary elections procedure permits greater participation since it also allows citizens that declare themselves as supporters of the party to participate in the selection, by registering as such on an ad hoc register.

  The nomination of candidates through primary elections is usually evaluated positively by the citizens in countries where this continues to be the monopoly of partisan structures, although it does not usually awaken the enthusiasm of their leaders. However, in elections that are not strictly local, the need for economic means and structures for the campaign are such that, far from facilitating the opening up of electoral competition, often impose an even greater burden on the candidates, in time, logistics and expense.

  Formalisation of Candidacy

  The formalisation of a candidacy should be a neutral operation. The object is to verify whether it meets the necessary requirements and formally name those who will be the contenders in that electoral process.

  Therefore, any other illegitimate purpose, aimed at limiting the number of candidates or hampering the activities of anyone who meets such requirements, must be avoided.

  However, this rule of respect should not become an excessive, costly guarantee, which is not always justified because of its real effects on the honesty of the electoral process. In effect, a visible contrast in attitude towards certain physical or formal defects can be observed among states with a long-standing democratic tradition and those recently established or recovered. In the latter, some precautions which are sometimes a formal guarantee and other times perhaps over-zealousness tend to be maximised to such an extent that it is worth taking a look at their financial repercussions, which cannot always be defrayed by the state itself without international aid.

  The candidacy must include the name and proof of identity, nationality, age and registration on the voters list or register. As evidence of the negative requirements (not having been sentenced to the deprivation of the right to vote, not being involved in an ineligibility suit), certification of public registers in which such limitations are entered should be sufficient (e.g., a certificate of not having a criminal record) or even a formal statement by the candidate.

  The express manifestation of each candidate that he wishes to stand is a reasonable requirement. Often the candidate is required to pay a formal deposit of a set amount of money to be refunded to him after the election, unless the number of votes received is so limited that it proves the lack of support for the candidate. This requirement is not objectionable either, as long as the amount required is not so disproportionate that in reality it becomes a discriminative on financial grounds.

  In this phase it is also often required that the person who will legally represent the candidate before the electoral administration and who will deal with it throughout the remaining phases of the process be appointed.

  Proof of such requirements must be possible through the commonly accepted formal and legal means in the legal proceedings of each country. Thus, to prove age or nationality requirements, an identity document, a passport, a certificate from the registry office or any other means of ordinary verification, should be enough.

  Failing these, the electoral procedure should facilitate proof by effective means. Obviously, any means already established in the country (drivers' licenses, municipal voters lists or registers, etc.) that offer sufficient guarantees are preferable to establishing new systems of documentation or proof of identity which could delay the electoral process and become very costly.

  The same applies to the proof that each possible candidate has full civil and political rights. In countries that have a permanent voters list, it should officially contain information pertaining to disqualifications for voting. In any event, any ordinary means of proof of the requirements should suffice and diabolical tests be avoided, which in reality become undue problems, depending on how difficult or costly they are. The general rule should also be to facilitate that mistakes or formal defects are overcome, within the short periods of time that must characterise the preparatory phase of an electoral process.

  The same rule of simplicity should be applied when it comes to proving the local influence of the candidate, when required. A certain number of signatures is not normally necessary as backing when one of the competing parties in the relevant constituency is already proposing the candidate on their list. But when they are independent candidacies or grouped voters, a number of signatures is indeed demanded as established by law, depending on the size of the constituency.

  The requirement of a usually tight deadline to demonstrate that the candidacy meets all the requirements cannot be considered unfair, as long as the demands are not discriminative in any way. An electoral process requires the accomplishment of numerous tasks in the shortest possible periods of time, to ensure that the electoral period does not become exasperatingly drawn out.

  It is, therefore, necessary for the law to establish short periods, adapted to the social, administrative and political context, though, in which each one of the preparatory phases must be completed. For the same reason, very short periods are envisaged for the resolution of the appeals which may come up in any of the preclusive phases. A candidacy proposed beyond the deadline, must be taken as non-existent. Elections take place among the candidacies that meet the requirements demanded at the set time.

  An issue which is not merely formal is the denomination and the symbols of the candidacy. The name of the candidacy and the symbols by which it is identified (initials, emblems or representative signals), are fundamental for their identification with voters. Therefore, improper use of the names of other political groups participating in the elections, as well as those that are so similar that they could lead to confusion among citizens, must be avoided.

  As a rule, candidacies proposed by political parties should bear their name, unless they form part of coalitions identified by another name. On the other hand, should candidacies try to formalise themselves with similar denominations, preference must be given to the party or coalition that had already been identified by it previously, whether it is because it is their own name or a name they were already using. In countries where there is a record of political parties, it should exclude those that are so similar that they might create confusion, and proof may be limited to showing prior registration of the name.

  The purpose of this exclusion of erroneous, similar or confusing names is not ideological, but for the sake of identity. The electoral authority should not judge the possible ideological confusion candidacies could bring about, as long as it is possible to identify each one clearly by their name and other symbols without possible confusion.

  Examination and Resolution

  The electoral authority has to ensure the formal and material requirements have been met. It has to act according to criteria that facilitate participation in the election and the correction of merely material mistakes, a pro electione principle that will reduce insurmountable defects to the minimum to facilitate participation and avoid discrediting of the results due to excessive inflexibility or formalism. The law must set exact dates for presentation, verification and decision. In the event of material mistakes or surmountable defects, short time limits necessary to resolve them have to be set (See Legislative Initiative: Direct or Indirect). Once this term has expired, the electoral administration must announce publicly which candidacies are considered valid because they meet all the requirements for participation in the electoral process. The usual way is publication in the official gazette, but other ways are admissible, in accordance with local uses or possibilities (edicts published in the press or posted in public places, etc.). In addition to being able to appeal to the electoral administration itself, it should also be possible to appeal to ordinary or specialised courts or other independent organs that are concerned with the control of the process (constitutional court, etc.), with very short time limits for their presentation and resolution. It must not be forgotten, however, that certain countries make provision in their constitutions for electoral authorities that are so exceedingly independent that, in the face of their decisions, not even judicial appeal is envisaged, which evidently cannot always and in all circumstances be considered as a guarantee of the honesty of the process. Once the short time limit for possible appeals has passed and those which were made have been resolved, the candidacies have to be named formally.

  Announcement and Publication

  The naming of the candidacies is the formal event by which the organ that governs the electoral process publicly announces which candidacies are to take part in the election and which parties they represent. This is usually published in the official elections gazette or by whichever system of edicts is established in each country. Once the appeals against such candidacies have been resolved, or the term of appeal has expired, the following occurs:

  • The terms of the electoral contest are set and it is determined among which candidacies they will be discussed;
  • It is determined which candidacies are entitled to the public aid allotted to the elections, e.g., the use of public premises or spaces, funding, exposure in public media and other forms of aid that candidates may receive;
  • The way is paved for the following phases and material preparations of the elections--the electoral campaign and the logistical preparations that fall upon the electoral administration, such as the printing of the voting paper.

  Political Organisations

  Political parties in the strict sense of the word, as well as alliances between parties and independent candidacies, may participate in an electoral process. However, at the present stage of the development of democracy conceived as a state of parties, the role of the parties is absolutely dominant compared to other organisations (see Party and Candidate Registration).

  Political Parties

  Introduction

  The relevance of political parties in representative democratic systems is such that often democracies are qualified as 'party states'. Among their most important functions are:

  • provide channels for creating, grouping together and representing opinions and political interests with a view to electoral processes
  • contribute to select the political elite and the rulers
  • formulate the programmes and ideological choices that compete in the political arena, providing a setting for interests and ideological preferences
  In short, as Lipson pointed out, the state structures and executes everything that is of political importance.

  The object here is not to examine all these functions, which nevertheless do determine fundamental elements of state's legal system, but only such aspects that have a bearing on its participation in the electoral processes. The intensity of its involvement in the latter, varies from one system, and from one electoral level, to another. In the case of parliamentary elections, in some instances they hold the monopoly for the presentation of candidacies, whilst in nearly all of them the identification of the list on behalf of the party that backs it, is determinant. In presidential elections, the personality of the candidate is obviously significant, as well as which political party he belongs to.

  Concept and Evolution

  Political parties are the voluntary groupings of citizens that are established to contribute to determining the policy of the state (or of the relevant territorial level) by means of forming the political will of the citizens, the presentation and support of candidacies, the elaboration of political programmes and whatever other activities may achieve these ends.

  Their constitution and functioning in a democratic state must be free, although they may be subject to certain formal and fundamental requirements (such as the elaboration of statutes to be placed in some public record or before the electoral authority)--essentially those relevant to act within democratic principles, upholding the constitution and the laws and being loyal to the democratic system.

  Special requirements for political parties can also be derived from the fact that some of their activities are subsidised with public funds. In some particularly advanced codes, mechanisms have also been created to ensure that their structure and functioning are democratic.

  Parties can have very different structures. Those of the current democratic systems, come from two large branches:

  • the small parties, notably of the liberal regimes that sprang from the French and American Revolutions
  • the large labour parties that emerged in the second half of the nineteenth century
  The first parties reflect the structure of the earliest constitutions, with restricted votes and political participation limited to a small portion of the male adult population. These groups were relatively lax as far as their programmes and ideologies were concerned, in which personal connections and attachments were determinant. Initially, their fundamental mission was to try to assure their own re-election and subsequently assure the recruitment of new parliamentarians, in a political career whose first step in national politics was normally taking up office as a member of parliament. Their evolution has been radically different in the American and European continents, each one of which has exported their model to other areas under their political and cultural influence.

  The large or mass parties emerged in Europe in the second half of the nineteenth century with radically different features. They were made up of a growing number of citizens, the majority of which belonged to the working classes, deprived even of their right to vote. They were parties with a class structure, whose major aim was the battle for equality and social justice as opposed to privileged groups that monopolised the wealth and political representation. In the majority of the cases, they emerged as a branch of the unions devoted to parliamentary politics upon resolving not to limit themselves to industrial action but to enter into politics as well to give impetus to their claims from there. Their ideological, programmatic component was the axis of their political action, which was not limited to giving occasional support to the candidates during electoral processes. They possessed a permanent structure, a governing machine and a massive, organised membership.

  The basic split among them occurred between those who accepted the electoral system as a democratic access route to the government, such as the Labour Party in the United Kingdom, the Social-Democratic Party in Germany and the Nordic countries and those who maintained the revolutionary way of gaining power, from which the Communist parties that governed without competitive elections in the old Soviet block originated.

  The greatest emergence of mass parties occurred in Europe between the two world wars of the twentieth century. The predominance and open confrontation between those of socialistic origin and the different models of mass parties of fascist ideology cornered the liberal parties and became one of the essential causes of World War II. The victory of the parliamentary democracies relegated the fascist-style parties to the residual regimes of Franco in Spain, Salazar in Portugal and various examples in Latin America.

  The decolonisation processes gave rise to the appearance of two large party models:

  • the mass parties of a democratic nature in countries that maintained representative systems, even though it may have been with one dominant party (as was the case in India)
  • and those in which a decolonising party or front evolved into a single-party state, with elections that were only partly open and representative (frequently the case on the African and Asian continents)
  By and large, the American continent maintained the liberal parties model of bourgeois origin, due to the influence of Spanish constitutionalism and, later on, of the two-party model of the United States.

  Which Parties Should Compete in Free Elections

  Participation in democratic elections must be open to all parties that accept the democratic system and incorporate its essential principle into their internal operations as well as their external aims and conduct. Adherence to the democratic system itself, within which they operate, should, however, not be interpreted as absolute acceptance of the laws and policies established at all times. Nothing prevents them from advocating reforms or amendments to the constitution, as long as they accept the procedures outlined in the regulations in force to accede to the government or for legal or constitutional reforms.

  In the majority of systems there are some minimum requirements for the recognition of the existence of parties in order to be able to participate in the political process. This generally entails ensuring that the constitution is revealed publicly, at least to a minimum extent, by means of registration or through any other common form of publicity and determining that the parties are democratic in nature for internal and public purposes.

  As a rule, parties are registered on a public record kept by the attorney general or electoral administration. In a pluralistic system, this has to be a formal requirement, in which the name and identification particulars of the new party do not lead to confusion with regard to any other previously registered party. Their precepts or platform are submitted, from which it has to be determined that the party will pursue lawful aims, by democratic means, with equally democratic internal procedures. Any doubt in this regard, must be submitted to a judicial or independent government authority (such as the electoral administration or the parliament).

  The controversy over tolerance limits that a democratic system should show towards activities of groups and parties that are not democratic or that aim to eliminate the democratic system is as old as democracy itself. There are, of course, several solutions in which the roots of each system have to be kept in mind, but a clear limit is the preservation of the rule of law and of the democratic system itself. The purpose is not to regulate demonstrations for the freedom of expression but, rather, to carry out organised, relevant political activities in electoral rivalry.

  In general, lawful ends can be reduced to those that do not violate bona fide laws and that do not pursue the limitation or the substitution of the democratic system by one that is not. Proposals that advocate the changing of elements of the political organisation (the electoral system, the territorial or administrative division, the distribution of powers or even constitutional change) are not unlawful, as long as they abide by the procedures and legal regulations in force. In any case, it can be demanded that the parties that wish to participate in democratic elections accept and observe the constitutional system and democratic rules, not only in an attempt to gain access to the government but also in the event of gaining power in the government, should this occur. The minimum limits of this loyalty are the observance of the rule of law, constitutional rights and the procedures that govern the performance of public powers and institutions of the democratic state. For obvious reasons, the control cannot rest with the executive power, but must be in the hands of the jurisdictional or other independent organs that have constitutionally been entrusted with this function.

  Internal Democratic Procedures

  From a certain degree of maturity of the party system and the overall democratic system they are part of, the requirements for the internal operations of the political groups that attempt to accede to government or other representative functions are governed by more open and transparent rules. The most common manifestation is that the election of the leaders and political action programmes within each party also take place according to democratic procedures, open to all the members of the party. This is a characteristic concern in mature party systems, in which the parties' roots are ensured so they can devote this energy to their internal procedures. In any event, it is evident that the typical factors of popularity and even charisma that tend to characterise candidates intervene in the election of the leaders. But regardless of the reasons that determine the decision of their members, they have the opportunity to express themselves democratically and may even resort to court or other independent organs of control, should such rights not have been observed.

  Rules on External Conduct

  Two aspects can be distinguished in the outward behaviour of political parties:

  • the means that they employ in their general political actions
  • the specific requirements and rules of conduct that guide their participation in the different electoral processes

  With regard to the former, their actions must be governed by the regulations in force for the protection of constitutional rights and the actions of the other the parties. Violent, coercive or intimidating means must of course be ruled out, but also such means that twist or distort the rules of free ideological dialogue among the parties, such as buying votes, the violation of procedures on funding of the political parties, forms of forbidden propaganda, whether it be because of whom they are directed at or the means employed.

  The establishment of codes of conduct by parties, voluntarily laying down reinforced procedures of conduct, especially with a view to electoral processes, is becoming more and more common. They govern such behaviour as:

  • permissible means as well as those that should be avoided in electoral propaganda (e.g., references to the private lives or personal situations of the candidates)
  • basic rules for political criticism among the parties or candidates to avoid excesses or excessive tension
  • on occasions, such matters that should not be the target of electoral disputes due to the fact that they might be especially sensitive or because the preservation of a basic consensus on matters that have nothing to do with the issue of the elections is sought (the form of government, territorial or religious problems, etc.) (see Codes of Conduct)

  Alliances of Political Parties

  Political parties may establish collaboration agreements on a wide variety of issues:

  • to take part in elections jointly
  • to form a government after the elections
  • to give external support to an existing government
  • several parties joining forces to overturn another party
  • to modify elements of the political system or jointly determine specific policies
  For the purposes of an electoral process, alliances are of interest in such cases. Alliances among parties can take on very different forms and degrees. First, they can form coalitions whose lists include candidates from each one of them or that are independent, identifying themselves as such a coalition for the entire electoral area and process and excluding independent candidacies from the parties in the constituencies affected by the coalition. Second, they may decide to alternatively put up lists of either of the parties in each of the constituencies with the object of optimising the electoral support that they envisage for each other. This is common practice in mature party systems, thus ensuring maximum effectiveness of their campaigns and avoiding the negative effects of the dispersal of votes on themselves or on the parties from which they can expect certain support or co-operation. Lastly, they can agree on the withdrawal of the candidacy which has obtained the least votes in the first round and request their supporters to back the candidacy of the allied party. At the same time, these agreements can be applied to very different areas:
  • to all the constituencies or only to some
  • to presidential, general or municipal elections or for a given or undetermined period
  The legal effects of these agreements are generally limited, as befits the freedom that should govern the strategic and political actions of the parties in a democratic system. As a rule, it is recognised that the coalitions formed for a given electoral process, and registered as such the moment candidacies are put forward, do have legal effects. These basically affect two aspects of the process:
  • the relevant public aid received
  • the prohibition on the presentation of independent candidacies by the groups that make up the coalition
  Added to these is the imposition of a higher electoral barrier than on the parties in some of the East European countries, like Croatia and the Czech Republic. On the contrary, the withdrawal agreements of the candidacies receiving the fewest votes, and even more so, those referring to post-electoral conduct of the parties or the candidates elected, only have political relevance, and any party or representative deciding not to fulfil them cannot be obliged to do so.

  Independent Candidacies

  In the majority of the parliamentary systems, the possibility that independent party candidacies and coalitions may intervene is quite limited. Parliamentary elections--at least country-wide elections--are disputed among major parties, and only they are entitled to the full public aid that an electoral campaign entails (see Electoral Campaign).

  The independent candidacies and the so-called voters' groups (which are ultimately a form ) are faced with material, and often legal, requirements and limitations that relegate these candidates to a marginal role in modern democracies. Among these limitations are:

  • specific requirements for endorsement by a certain number of signatures in order to present their candidacies
  • obligation to put down monetary deposits
  • limited access to free electoral exposure in the public media
  • in systems that provide public aid to the electoral campaigns, usually do not receive funds up front
  A paradigmatic example is the regulation contained in article 220.4 of the Spanish electoral law on the requirement of a set number of signatures. The demand for signatures is practically eliminated for political parties, since the signatures of fifty officials elect on any level, even municipal, are enough. However, the voters' groups that do not have the capacity the parties have to raise them, have to present 15,000 signatures. In short, their possibilities of taking part in the campaigns effectively are very limited, unless they are able to invest their own substantial funds and other resources. Such was the case of Ross Perot in two successive presidential campaigns in the United States. In fact, in the second one, he eventually obtained far fewer votes, partly because he had been excluded from access to the media.

  The exception is an election that permits candidates or groups with limited means to take part because of the reduced area they cover, such as a local election.

  On the contrary, in presidential systems, the personality of the candidate is usually of greater importance, so the weight that the parties carry in the presentation of the candidacy, is relatively less. This is a consequence of the different way of sharing power between a president elected by direct vote and the members of the chambers, who are indeed from specific parties. Presentation to the latter by the parties is not always sufficient and on top of that, a certain number of citizens' signatures are often required.

  Electoral Campaign

  Different Campaigns

  Before analysing what comprises the electoral campaign, it has to be distinguished from two relatively similar concepts that usually occur at the same time as the campaign: the so-called institutional or civil training campaigns and the informational campaigns.

  By institutional campaign or civil training campaign, it is meant the campaign carried out by the public powers with the object of informing the citizens on the circumstances that surround the elections and particularly on the procedures the voter has to follow, without swinging their vote. Often its purpose is not purely informational, but it also aims to combat abstention by encouraging the citizens to vote, although some electoral laws formally forbid such objectives.

  To execute this, the public powers can use public communications media, if they exist, or employ the private media. In such a case, they also have to observe scrupulous neutrality in their selection, which does not at all mean that they have to use all the existing media, but the selection must be done in accordancw with pre-existing objectives, and it must be considered that this is one of the elements that pushes the cost of an electoral campaign up the most.

  Voter education and information campaigns usually last for as long as the actual electoral campaign and, therefore, start once the candidates have officially been named. However, in regulations where citizens are required to register beforehand in order to be able to assert their right to vote, an information campaign is usually also launched prior to the preliminary, or primary, phase.

  A delicate problem, very difficult to solve in practice, is the differentiation between this institutional campaign--neutral by definition--and the informational campaigns carried out by the public institutions on the achievements under their management, inevitably orientated towards favouring their re-election, which coincide with the end of their mandate, and therefore with the electoral period.

  It is probably impossible to determine beforehand at which point this type of action may start clashing with principles of objectivity, transparency, pluralism and, above all, neutrality of the public powers that have to govern the electoral processes.

  Therefore, the solution adopted in the most secure regulations is to forbid encouragement of the vote through institutional campaigns and entrust the electoral organisations with a special control function over the informational actions of the government, correcting their manifestations that are clearly partisan, that is to say, those that can in no way be considered as safeguarding the public interest or the normal operation of public services.

  Electoral Campaign

  The electoral campaign can be defined as the set of lawful activities candidates and their parties carry out, once they have formally been named as such, aimed at securing votes. These activities are normally at least partially subsidised, directly or indirectly, with public funds. But this process of canvassing votes must be subject to procedures and guidelines that guarantee the equality of the contenders, the honesty of the process and the neutrality of the public powers. Let us analyse each one of these elements separately:

  Subjects of the Electoral Campaign

  Strictly speaking, the electoral candidates formally named as such are the only subjects that can carry out an electoral campaign. However, such a formal conception clashes with the reality of electoral processes the world over, since organisations such as trade unions, employers' associations, groups of citizens, the media and even famous personalities completely alien to politics, publicly express their support of particular candidacies, canvassing votes for them, that is to say, actively campaigning for them.

  As it is impossible for democratic regulations to impose a limitation on the freedom of expression that the prevention of statements by these groups would mean, even more so at a time when the people are called upon to express their opinion, the common procedures of comparative law that limit the campaign to the electoral candidates have to be interpreted rather in the sense of emphasising that they and only they will receive public subsidies or advantages for the fulfilment of these activities.

  A different problem, which is also common, is the prohibition of the members of organisations with a mediating function in the process, who should therefore remain neutral (e.g., members of the electoral organisations, of the judiciary, military or police), from participating in an electoral campaign, as they may have an intimidating effect on voters.

  The legality of this exclusion of the basic rights of those affected can be defended, as long as these rights are specifically pre-determined in the constitution or in the law, precisely because of their function to ensure fully democratic elections. Because of this, violation cannot have the deprivation of public funding as the only consequence, but it should be followed up by criminal or disciplinary sanctions.

  Temporary Limits

  Closely related to the idea that the electoral campaign is carried out by officially sanctioned candidates is its conception as a set period of time for campaigning, normally between their being named by the relevant organisations and the day before voting, so electoral laws usually prohibit any campaign rallying, including the dissemination of propaganda material, beyond this period of time.

  The duration of electoral campaigns, as such, generally fluctuates between two and four weeks. The principle of equality demands that it be the same for all the candidacies. The Russian campaign of variable duration is an anomaly. (see Electoral Campaign of Variable Duration in Russia).

  The so-called 'period of reflection', which is getting longer and longer and tending to terminate campaigning at least twenty-four hours before voting starts, does not usually give rise to any extraordinary problems, insofar as its purpose is manifest: to avoid the parallel execution of the campaign and voting procedures and allow the contenders to take a kind of 'break from organisational matters' before moving on to the next operation.

  However, the prohibition is infinitely more problematic for the periods prior to the formal naming of candidacies, especially from when the elections are announced. Similar to the problem we analysed when we dealt with the subjects of the campaign, the problem at this point is that these procedures cannot be interpreted as an abrogation of the constitutional functions of the political parties and, in general, of the freedom of expression. For this reason, in regulations where the prohibition is express, it tends to be interpreted in an extremely formal sense, identifying it with a prohibition on the canvassing for votes, but not with any other party event, as long as the vote is not formally requested.

  A different problem arises in systems where the candidates are named based on the extent to which they fulfil specific requirements (for example in the Russian regulations). This brings about a very undesirable campaign of variable duration for the different political groups. This is undoubtedly a technical flaw in the regulations which on the other hand is easy to overcome.

  Since what is intended with these rules cannot be the limitation of the activities of political groups, but only the setting of the temporary period during which such activities will receive public subsidies, one thing should be a clear as possible: it is not about prohibiting activities but simply to assert that they will not be subsidised, which leads us to temporarily setting the campaign as the period of time during which the contenders receive public aid. In this regard, the duration should also be adjusted taking into consideration the cost factor, although as a rule it can be said that the less developed a country is, the longer and therefore the more costly the electoral campaigns will be.

  The definition of electoral campaigns in terms of their subjects, as well as their duration, have brought about the activities for which the participants in an electoral process receive public contributions--directly or indirectly--or are subject to special public regulation. We will therefore analyse which public advantages electoral contenders usually receive and under which conditions.

  However, it has to be stressed beforehand that one of the most important elements for elections to be free and fair is the existence of an electoral campaign that possesses these very characteristics, to thus assure adequate informed decisions of the people to be expressed on the day of the elections. It is also evident that the degree of equal opportunities for the contenders and of correlative neutrality of the public powers achieved in each electoral campaign largely depend on the general democratic level reached in that country, and, in fact, on its ordinary mechanisms that guarantee fundamental rights and the separation of powers.

  But, being an extreme demonstration of partisan competition when what is at stake is the succession to power, electoral processes tend to make the temptations to utilise public powers to the benefit of those who hold them temporarily more acute. This is something which should be addressed in a special effort by the electoral organisations and the judiciary to achieve full application of equality of opportunities.

  Non-Financial Assistance

  Premises and Advertising

  Free use of public spaces for electoral events and for the display of advertising material by the different candidacies is a very common practice in the majority of electoral processes. From a democratic point of view, this allotment can meet strictly egalitarian criteria regarding the candidacies or be based on reasonable, objective, pre-set distinctions that determine unequal treatment among them, for example, in view of the votes obtained by the party in the last equivalent elections. These operations are executed or supervised by the electoral organisations to assure equal opportunities during the process.

  Public Media

  This is a variant on the foregoing paragraph that has acquired extraordinary importance, as the media are being used more and more for electoral campaigns in modern societies, which has given rise to meticulous regulation in the majority of the recent electoral procedures. This subject is the target of constant attention and monitoring during electoral processes. The following principles should be applied:

  • free media access for all candidacies
  • neutrality of information provided by the media, encompassing not only time and space dedicated to the electoral campaign, but the informational programmes as a whole--electoral organisations must control this in terms of contents and the treatment of the news
  • observance of political plurality so that information on a given candidacy, for example, cannot be excluded
  • prohibition or strict limitations on the possibility of contracting advertising space which should, in any case, be clearly differentiated from informational publicity
  • distribution of media time and space according to pre-established, objective criteria
  In some countries, the growing importance of the media has given rise to the emergence of a new phenomenon. As the opportunities for publicising candidacies are extremely open, there has been a proliferation in candidacies with the sole intent and purpose of having free access to the media for purposes that are not strictly electoral and then withdrawing from the competition once the campaign has ended (e.g., social movements that thus attract public attention).

  Thus, fraud is clearly committed, apart from this being a confusing over-saturation of electoral publicity time and space. The result is harmful to the genuine candidacies and, for that matter, to the electorate as a whole. The solution is not simple: the difficulty of separating the electoral wheat from the propagandistic chaff usually causes the electoral bodies to refrain from intervening, even in clear cases of abuse.

  Private Media

  Electoral regulations usually contain two types of procedures with relation to the private media: in the first place, those directed at the contenders usually establish a limit on the quantities that can be allotted to this type of expense; in the second place, those directed at the media, forbidding discrimination regarding the inclusion or exclusion of electoral advertising by the candidacies, as well as its costs.

  Obtaining an Updated Electoral Register or Voters List

  Another public advantage or indirect subsidy usually offered to the candidacies is a copy of the electoral register, or voters list, to be used for the elections, with the dual purpose of being able to conduct a personalised campaign as well as carrying out control on the day of voting.

  In some developed countries a curious problem related to the protection of information on citizens has emerged. The voters list has acquired high financial value because of the data it contains, to such an extent that some candidacies have been organised according to economic groupings, with no other purpose than to obtain this valuable file of information on the citizens. To overcome this problem, utilisation thereof for any ends other than the elections was penalised, and a decree was even made to identify data supplied to each political group by computer, so that any culprit diverting it for commercial purposes can be traced.

  Electoral Mailing

  Closely related to being provided with a voters list is the provision for subsidies--normally a very reduced tariff--for mailing out campaign literature and, in states where the ballots may be printed by the parties, of ballot papers. In some cases the printing of the campaign literature is also subsidised, granting an amount of money for each batch actually sent out.

  Financial Controls

  One of the areas of electoral regulations that most clearly shows the need for public control on equal opportunities is the finances of the political parties during an electoral campaign, perhaps more important than at other times (see Public Financing). This control is reflected in the following:

  Control and limitation of private contributions. The establishment of quantitative limits on contributions made to electoral campaigns is very common (e.g., in the United States US$1,000 per campaign, per candidate). Funding by public companies or companies with public shares, as well as states, organisations, companies and foreign citizens is also forbidden. Some regulations encompass more specific cases, such as the present prohibition in the Russian regulations applied to religious denominations. Coincidentally, anonymous cash donations are usually forbidden or limited to very small amounts. Donations have to be public, and it is considered that contenders have the right to know who finances each candidacy and to what extent. Within certain limits, contributions are tax deductible in many countries to encourage private donations (among others, the United States, Germany, Canada, Switzerland, Belgium) or donations from estates (United Kingdom). This is also possible for companies in countries such as Holland and France.

  Limitations on private contributions do not, however, mean their prohibition. On the contrary, there are meaningful examples within the sphere of the former Eastern European countries (e.g., Kazakhstan and Bulgaria) where this rule, combined with the granting of equal amounts of public funds to each contender, theoretically aimed at safeguarding the equality of the contenders, in practice gave rise to a marked inequality in favour of the ex- communist parties in power, as the amounts in question were very small.

  The distribution of public contributions according to pre-set, objective, and reasonable criteria. These contributions may consist of a direct subsidy by the State for specific activities, or the payment, under specific conditions and with prior public control, of the electoral expenses incurred, which in turn, implies a legal definition of the latter. In many countries, in addition to this electoral aid, ordinary activities of the political parties are also funded, normally in proportion to their parliamentary representation in the annual budget. It is not uncommon for this percentage of subsidies to the parties to represent over fifty per cent of their annual budgets. An overall view of public financing in 17 western countries is shown in the following chart:

  Country	Political Party	Parliamentary Groups	Annually	Electoral Campaigns	> 50% budget party	Other than financial
  Germany	X	X	X	X	X	X
  Australia	X			X		X
  Austria	X	X	X	X	X	X
  Belgium	X			X		X
  Canada	X	X	X	X		X
  Denmark	X			X		X
  Spain	X	X	X	X	X	X
  U.S.	X			X		X
  France	X	X	X	X		X
  Holland	X			X		X
  Ireland	X			X		X
  Italy	X	X	X	X	X	X
  Japan	X			X		X
  Norway	X	X	X	X		X
  U.K.	X	X	X	X		X
  Sweden	X			X	X	X
  Switzerland	X	X	X	X		X

  Establishing a limit on electoral expenses permitted for an electoral campaign. In spite of the fact that the first examples of limitation on electoral expenses of parties date back to England at the end of the nineteenth century, these measures more recently have been generalised in electoral regulations. They are aimed rather at trying to curb the excessive costs of the campaigns in the context of more or less frequent scandals related to irregularities in the financing of political parties.

  So, in reality these procedures should be seen more as a kind of pact of self-restraint (though often disregarded) among the main parties, than from a view of permitting the participation of political groups with less economic resources.

  In spite of this practice being widespread, experience shows that the imposition of unreasonably low limits, such as those established for the presidential elections in Russia (see Problems in the Regulations on Electoral Funding in Russia), becomes a real invitation to illegal financing of political parties, which should be taken into account when it comes to regulating this matter.

  On the other hand, an indirect but very effective procedure to limit electoral expenses is the reduction of the campaign period which is in keeping with the new reality of mass media. There is a certain trend towards a campaign lasting two weeks, which continues to be considered the minimum essential period of time.

  Consequently, a number of specific control mechanisms for party finances during electoral periods are necessary, including:

  • the need for ad hoc electoral accounts
  • the appointment of electoral administrators
  • more incisive public mechanisms for the control of these funds
  • the possibility of administrative and/or criminal sanctions stemming from the violation of the procedures set forth
  Among these sanctions, the naming of the candidate can even be nullified, as can the results obtained in the election by the candidacy in question, along with possible disqualification to participate in future elections. All this can happen, in addition to the accounting or criminal prosecutions that may ensue and, in the less serious cases, a proportional reduction of public subsidies.

  The organisations entrusted with the control of electoral finances of the parties can be the electoral organisations themselves, as occurs in the majority of the Anglo-Saxon as well as the Central and South American countries (see Regulation/Oversight of Campaign Finance). However, there is no shortage of models that grant such jurisdiction to parliamentary bodies (Germany, Italy and Spain, among others) or even to an organisation run by the executive or judiciary (United States and Austria).

  Other Legal Guarantees

  The electoral campaign is characterised as being a relatively short, designated period of time that should, in all respects, terminate by the day of the elections. This means that any legal dispute that emerges among the contenders has to be solved swiftly and conclusively, otherwise it may compromise the voting process.

  This is the basis on which broad powers of control are granted to all electoral organisations throughout the world and accelerated decision-making procedures are established. However, the ultimate control of their decisions poses a new problem: preventing their judicial review from disrupting the traditional scheme of judicial control, characteristic of democracies and even of the very conception of the separation of powers. But to be effective, appeals have to be solved in the briefest amount of time, in order to prevent discord in the actual election.

  This in turn implies the necessity to frame specialities in the application of specific general procedures, above all regarding judicial control. A delayed solution would be tantamount to not solving it, insofar as it will not have prevented it from being reflected in the distortion of the will of the people expressed on the day of the elections. In fact, the procedures that regulate electoral campaigns have to reflect the reality that in this field a delay in solving any abuse means that this has become enfolded in terms of freedom in the expression of the vote.

  Over and above areas related to the right to active and passive suffrage, several material fields require specific provisions for the security during the electoral processes and, consequently, have to be taken into account by electoral regulations. Among these, the following can be enumerated:

  • the right to hold meetings and demonstrations, infringements of which by the public authorities to be solved judicially in the briefest time possible, because their denial implies an objective reduction of the campaign for the candidate affected
  • the right to rectification, because of the evident repercussions that the dissemination of misleading or incorrect information has on the contenders in the campaign
  • the regulation of electoral surveys, in an effort to prevent the electorate from being influenced by misleading or manipulated surveys
  To the last point, electoral regulations that impose specific technical guidelines on surveys and even a complete prohibition on their publication on days immediately prior to the elections are common. In the event of an erroneous survey having been published, then, there will be sufficient time for rectification.

  Voter Registration

  In the section on voter's qualifications (see Definitions), we analysed in depth the systems of creating a periodical list, elaborating a permanent voters list and utilising the register of births, marriages and deaths as alternative measures to guarantee that the citizens' right to vote is correctly exercised.

  In this section, it is however necessary to refer to the common problems of the three systems, insofar as they consist of voters' registers, that is to say, data banks pertaining to the voters from which affirming the right to vote has to be formulated. A legal analysis of these registers requires an examination of the following features or aspects:

  Updated and Reliable Register

  Voters' registers allow election authorities to determine who may exercise the right to vote in each of the processes.

  It is therefore essential for the data to be undergo constant revision, which will guarantee that requisite new entries and deletions are made and that duplications are avoided.

  In the modern permanent registers of most industrialised countries, updating is normally done regularly, from every one to six months, so the register used in an electoral process is a document that shows the most current additions and deletions of names over the previous period.

  The maintenance of voters lists requires complex operations. In countries like the United States and Canada, for example, it is calculated that between 16 and 18 percent of their entries are modified annually, mostly as a result of address changes.

  Besides periodic updating, electoral regulations usually stipulate specific updating or rectification of the voters' register at election times, with a designated period of time for the lists to be displayed and citizens to report inaccuracies. This usually goes hand in hand with particularly swift administrative and/or judicial procedures, to ensure that the necessary modifications are made and are effective on election day.

  It is evident that with this operation that the permanent voters list offers the greatest advantage for registration procedures in each election.

  Voting Registration Data

  Public exposure of the data contained on the voters lists, or registers, is an essential requirement for guaranteeing the right to individual suffrage, as well as the overall legitimacy of the process.

  The basis of democratic, competitive elections should be a transparent voters list. In fact, one of the most consistent criticisms of the 1995 presidential elections in Peru was the lack of public exposure of the voters list. It had been compiled by a government organisation and remained virtually unknown to the political parties until the very day of the elections (see Problems with Publicising the Census in Peru).

  The electoral regulations generally enumerate this feature, clearly indicating the time and under what conditions the political interests will have access to the electoral data, normally processed in such a way that a computerised copy can be obtained immediately after the elections have been announced.

  But at the same time the public exposure of the register offers the assurance that it is correct and up to date as, even though modifications of data regarding age, deaths and acquirement, and loss of the right to suffrage can and must be made officially, other data, particularly address changes, can be shown more rapidly since they are provided by the citizens themselves. Also, certain types of mistakes, such as in the spelling of surnames, can only be found and corrected if advised by the voters themselves.

  Public display of the lists, or unrestricted and free use of the computer systems by all citizens that wish to consult them, and the existence of universal legitimisation to promote the incorporation or elimination of persons or modification of their data is common practice.

  However, due to financial, organisational and data protection considerations, citizens do not normally have the right to obtain a copy of the register, not even by paying for it.

  Cost and Electoral Register System

  Except for some English-speaking countries like Canada, the United States and Australia, the majority of the permanent electoral registers are closely interrelated with other population, civil or municipal registers. This brings about a considerable cost saving compared to independent electoral register systems.

  This interrelation can however be developed in two different directions:

  In the more developed countries, civil and municipal registers emerged before the universalization of suffrage created a need for a voters' register. Therefore, in the greater majority of the Western European countries (among others, Germany, France, Spain, Sweden and Finland) the voters' register consists simply of an adjustment of the data contained in the municipal register for electoral purposes whenever elections are held.

  On the contrary, in the areas that gained access to development more recently, such as Central America and Africa, the process has been just the opposite. These civil and municipal registers have been created from the elaboration of the electoral register in the democratisation processes. This is the reason why the electoral organisations are so dependent on civil registers in some countries, like Nicaragua and Costa Rica. In both cases it is evident that a public electoral register must exclusively contain such data that may be relevant to the holding of elections, which is much less than what is shown on civil or municipal registers.

  Minimum Registration Data

  Whichever system is used, electoral registers should only contain the relevant data needed for elections while guaranteeing the protection of the citizens' privacy.

  Across the board, the data considered necessary on an electoral register includes the voter's name, address and date of birth.

  Address

  The citizen's address is considered essential inasmuch as the registers are classified by territory and link the affirmation of the right to vote to a specific electoral constituency.

  Problems do arise, however, when it comes to assigning an address to someone who actually does not have one, whether it be because they permanently reside outside the country or because they do not have a stable home. In cases where no permanent address can be established, electoral regulations usually provide legal alternatives to avoid any deprivation of the basic right to vote. In systems with a permanent register, for example, the solution usually consists of maintaining the last address prior to residence abroad for electoral purposes. Voters registration systems have also sought practical solutions of a legal or jurisprudence origin. Thus, for example, in the majority of the states in the United States, it is permitted to use a mail drop or a friend's address for voter registration, as long as they can be located by the United States Postal Service. This has allowed thousands of homeless people to express their right to vote who might otherwise not have been able to vote.

  Date of Birth

  Dates of birth are also a important from an electoral point of view insofar as the right to vote usually requires being of legal or majority age. It can also play a role in systems where polling stations are made up of citizens designated by the drawing of lots, forming a compulsory civic duty from which those above a certain age can be exempted.

  Along with these particulars that might be considered essential, some systems add others that are accessory but that may be important in the establishment of an adequate electoral register. Among them, are the following:

  The number of the national identity document or card. This information is recorded in countries where they exist, or the social security number or the passport in countries that, due to cultural reasons or economic development, do not have such official national identification documents (e.g., Great Britain and the United States).

  The reason for its inclusion is its usefulness as a control digit, to avoid that the inevitable coincidences in names existing on all registers lead to registration duplications.

  This is an important correction mechanism of the registers, which is why universally there is a tendency to include it, either by means of an overall identity card issuing process, or because certain documents (such as the Social Security card in the United States) are progressively assuming the functions of the national identity card. For traditional reasons of privacy, only Great Britain seems to continue opposing the very existence of a compulsory national identity document.

  Nationality. This information can be relevant in countries that permit foreign residents to vote in some types of elections, in particular in the municipal and European Parliament elections, but that exclude the right to participation in the presidential or parliamentary elections.

  Education level. Although presently this is mostly an irrelevant detail, and where it is maintained, it is more a remnant of the restricted voting system in which it was used, it still fulfills some purpose in the systems where appointments to polling stations are made up of citizens who surpass certain educational levels. However, even in such cases, only this information should be indicated, without any further unnecessary particulars.

  Political party membership. In the majority of the countries, this detail is unthinkable on a public register, to the extent that it will probably be considered unconstitutional in many democratic states that hold it is a citizen's right not to make any public declarations on their political ideas or beliefs. However, in the United States it is introduced, normally voluntarily, as a consequence of the system of primary elections, characteristic of that system, so that to the two big parties, the register also serves as a roll of their more dedicated supporters.

  Race. This information may be applicable in systems that consider it relevant to the setting of ethnic electoral constituencies and reserves. Apart from such cases, this is an element that should not appear on electoral registers, and when it does, it should be for motives that have nothing to do with the elections, such as the forming of juries in the United States.

  Gender. This is a factor which serves no electoral purpose in modern democracies, so its existence in some systems has to be attributed to its heritage of prior restricted vote, or because of its utilisation in the same non-electoral sense as race.

  Safeguarding Privacy

  It is evident that the voters list, or register, should offer the complete data necessary for the effective organisation of the electoral processes and the guarantee of the individual right to suffrage in such a way that the information obtained is protected against any attempt to invade the privacy of the citizens.

  The problem of possible utilisation of the register for commercial purposes in the most developed countries is a very important current issue, as there is an evident interest in the data it contains. Obviously, the more data it contains, the greater the interest, for example, regarding address, employment, education and even income level.

  To guarantee the dual requisites that registers have to be public and yet protect privacy--contradictory to a certain extent--electoral or data protection laws should envisage the following issues:

  • As a public register, it should contain the data that is absolutely indispensable for the holding of the elections and no other purpose;
  • In certain justified cases, it will be possible to exclude some data, such as the voter's address;
  • Should the personal data displayed not be correct, an effective procedure to guarantee the correction at the request of the interested party should exist;
  • It must be predetermined who may gain access to the voters register and by which procedures;
  • Any utilisation of the voters register for purposes other than electoral business must be classified as criminal or administrative offences.

  Voting

  The different problems that arise in the organisation of the various operations necessary for the casting of votes are analysed in this section, from the establishment of an electoral map or the forming of the constituencies, to the supply of the material means required, the observation operations and the surveys. These are, beyond doubt, the core operations in an electoral process, and as such, they form the subject of a more in-depth study in the section Voting Operations (see Materials and Equipment).

  Voting Organisation

  According to the president of the Electoral Commission in India, the general elections held there on 5 June 1996 entailed an operation in which 590 million voters were called to 825,000 voting stations over seven days, with the possibility of choosing, on average, among 26 different candidacies, although there was one constituency with 460 candidates. To guarantee the honesty of the elections, more than five million polling station officials were engaged and over two million policemen were mobilised. All the voting stations were set up, the final results were available in four days and the nullification percentage from the voting stations was 0.24%, which is more than acceptable. All this was accomplished at an estimated cost of US$200 million.

  Although the organisation of elections certainly does not often reach such proportions, it is nevertheless always a complex and delicate operation in which the electoral administration has to be capable of handling the means necessary for all the citizens to have the genuine opportunity to vote on a pre-set date, through procedures that are understandable and in conditions in which the right to vote is guaranteed. This entails the following steps:

  Establishment of an Electoral Map

  The venues where the voters should go to cast their vote have to be determined within each constituency. The criteria that can be used for this are:

  The distribution must be pre-determined and public, so that all citizens who take part in the electoral process know beforehand where they should go. In this regard it is advisable to restrict variations from one election to another to the absolute minimum.

  The division should basically be in accordance with geographical criteria, so that the venue where the voter has to vote is as close as possible to his or her home. Obviously, a distribution of voters according to other criteria (such as by surnames) would be foolhardy since it would require extensive travel by the citizens in search of the place to vote.

  There should be a minimum size, determined by the need to maintain voting secrecy, and a maximum size, imposed by the need to execute relatively complex operations in a short time. In this regard, it is difficult to establish general rules, considering the great variety of geographical situations, how developed the country's communications are, etc., in which the different electoral processes take place. But it can be considered advisable to set the minimum accommodations at 300 voters and the maximum at 1,500. It may be necessary to utilise mobile voting stations to collect citizens' votes and then transport them to a suitable place for counting, with the due guarantees of control.

  Voting stations should be located in places that are not only accessible, but that favour free expression of the vote and are ideologically neutral. In this respect, for example, the establishment of voting stations in police stations, military installations, headquarters of political parties, religious denominations and even in government buildings at times of political transition should be avoided. On the other hand, using schools as voting centres is most appropriate and common.

  Finally, it must be established which people have authorised access to the polling stations, in order to prevent the presence of anyone who has no electoral function and might be a hindrance to the voting operation. Normally, electoral procedures allow the president or supervisor of the voting station the power to authorise which individuals may be present during the electoral operations, with the authority to call upon the aid of police present on the premises if necessary.

  Who Mans the Voting Station

  Voting stations are the central instrument for a successful election. There the citizens' voting is monitored, initial results are scrutinised and documents are prepared for the authorities charged with the official counting of the ballots. Consequently, voting stations handle the key operations of the entire electoral process. Voting station staff determines who may vote, which votes are valid, and often what the results are, etc.. They often carry out these tasks without the possibility of subsequent appeal.

  An adequate composition of the voting station staff is therefore fundamental. In particular, an effort should be made for its officials to be independent persons, not only from governmental powers but the political parties themselves. In this regard, it is preferable that they be citizens nominated through whose results are of a compulsory nature. If handled correctly, their absolute independence with respect to any power or candidacy is guaranteed. The possibility of fraud is ruled out to a significant extent. The only drawback with this system may be the lack of legal knowledge on the part of those nominated who are not necessarily professional. To overcome this, several different measures can be taken:

  In the first place, it is common for electoral regulations to impose specific training in order to be an official of a voting station and, in particular, to be the president or supervisor, so lots are drawn only among those who meet such requirements.

  To a greater or lesser extent, all regulations offer certain specific training to voting station officials, either through courses or by providing them with detailed instructions, in the form of a manual, on how they have to perform their duties and solve the different problems that may arise on election day.

  In some North European countries the system is slightly modified, inasmuch as even though the voting station officials are designated through the drawing of lots, the president, or supervisor, is a regular municipal official, the same one for all the electoral processes. This is probably the best possible system, insofar as the advantages of non-partisan citizenship and professionalism are made compatible. However, this is a model characteristic of extremely consolidated democracies and very difficult to emulate.

  This composition is perfectly compatible with the fact that, in the majority of the systems in which it is used, the possibility of appointing representatives as voting station officials (monitors, auditors, representatives) is granted to the political parties and as a rule to all the political forces that have candidacies.

  The representatives may intervene in all their operations, with a say but normally without decisive powers. As a whole, through the accumulation and annulment of partisan standpoints, they make a decisive contribution to guaranteeing the honesty of the elections, constituting a suitable complement to the appointment of polling station officials through the drawing of lots.

  This presence the candidacies have in the operations of the polling stations must not be confused with national or international observation of the elections (see Observation) insofar as each of them follows a profoundly different reasoning.

  Voting Operations

  The procedures that regulate the voting and counting operations at the voting stations are extremely painstaking and standard in all regulations. They are designed to anticipate all situations and, as far as possible, give clear and exact guidelines to the thousands of legal personnel that apply them.

  However, this has to be compatible with the ordinary citizen being able to fully understand them, because it has been empirically proven that complex regulations for voting or the inadequate design of electoral material inevitably generate a high rate of abstentions and blank votes.

  In this regard, the Peruvian experience in 1995 is exemplary. As a consequence of a highly confusing system of preferential votes and ballots of inadequate design, the National Assembly Elections lead to an abstention of 10 points higher and a percentage of blank votes 30 points higher than the presidential elections held on the same day.

  Schematically, the most important procedures are:

  Determining that the voter can assert his right to vote, because he has been identified, appears on the voters list of that voting station and has not already voted. In principle, the voting station officials decide which voters may or may not vote. However, in many systems (among others, Australia and Guyana), persons with identification difficulties are permitted to vote through what is known as the 'Tendered Ballot', 'Challenged Ballot' or 'Declaration Vote'. These are voting papers that, in spite of posing problems, are provisionally accepted and are counted separately, the decision on whether or not they are valid being left for a later stage. They have the dual advantage of permitting the voting process to go on and referring the decision to a more qualified authority, preventing the unjustified deprivation of the right to vote, but with the necessary mechanisms for them to be counted only if everything is in fact in order.

  The physical act of voting. The vote is personal and secret, which is why many regulations specifically establish that it has to be cast personally. However, it is also relatively common for electoral regulations to envisage the possibility that certain categories of voters may be assisted in this operation by someone they trust (for example, physically handicapped or illiterate people).

  In all electoral regulations it is established that there must be a booth to guarantee secret voting. Generally this is compulsory.

  After voting, the voting station officials employ the necessary measures to prevent the person from voting more than once. In countries that possess the most elaborate voters lists, this usually consists exclusively of scratching the name out on a numbered voters list which is in the possession of the voting station officials.

  However, in many countries this is not sufficient guarantee of not being able to vote again at another voting station, so any voter that has already asserted his right to vote is marked with indelible ink.

  Many regulations envisage the possibility of voters not being able to cast their vote personally on the day of the elections, for various reasons. Apart from the rare examples where it is possible for persons to vote in a different place from their permanent residence, such as in Australia, voting mechanisms are normally established, like voting by mail or by proxy. That is to say, a person who cannot vote grants specific power of attorney to someone else they trust.

  The two systems pose a similar problem which is very difficult to solve: guaranteeing the freedom of the vote and preventing fraud in the utilisation of these mechanisms, without, at the same time, enshrouding it with such tight precautions, that they are purely and simply rendered unusable.

  In any case, these mechanisms are not recommended for countries in political transition or for developing countries, as in neither does the mail operate adequately nor are they in a position to guarantee the freedom of the vote according to these procedures. In short, in such cases we consider that these mechanisms should not be introduced, insofar as the benefits that they may hold are indisputably less than the possibilities of fraud they may allow. In these cases and for certain types of citizens that are, for example, in hospital, the mobile voting stations we have already mentioned are more advisable.

  Scrutiny. In the vast majority of electoral procedures, the voting station officials themselves exercise scrutiny. It starts immediately after the voting has ended. It has to be one single action that cannot be interrupted. The voting station officials declare which ballots are spoiled, which votes are blank and which are valid and do the count of those belonging to each candidacy, so that the total will tally with the number of votes cast.

  This is a public operation, executed in the presence of the auditors or representatives from the political parties and national or international observers, should there be any. The results are shown in a voting record book, which will be used for the general count and designation of seats.

  In many regulations this operation is ruled by the principle acta mata veto or the preclusion of any claims and complaints, that is to say, that whatever had not been reported at each of the stages of the process (scrutiny at the polling stations, general scrutiny, etc.) cannot subsequently be impugned.

  The voting record book reflects existing problems, so the ballots admitted as valid are destroyed without any possibility of them coming up for discussion again. Claims are therefore only possible if the problem has been entered on the official voting record book.

  Operations following the scrutiny. Once the scrutiny is completed, the polling station officials have to enter all incidents that occurred during voting, the votes cast and the results obtained by each candidacy in official records. They should likewise show the existing discrepancies regarding the count. These records are the basis of both the quick count (official or otherwise) done immediately after the elections and of the official count entrusted to the electoral authority. They are signed by the polling station officials and, in some systems, by the representatives of the candidacies involved.

  The duties of the voting station officials are not concluded until they have handed in their records at the places officially destined for this purpose, normally at the offices of the electoral authority or the judiciary.

  Materials

  Ballots

  In spite of the fact that many countries have carried out electronic voting, paradoxically especially developing countries and even in spite of how old the practice is, for example in local elections in the United States, the reality is that in the vast majority of the cases they simply entail experimental, parallel counts and they are even carried out by data processing or communications companies and not by the official authority of the electoral process.

  Although the system most probably has great possibilities for future development, elections all over the world presently take place by means of ballots with the names of the candidates to be chosen from in the constituency, without any significant exceptions.

  In this respect a fundamental distinction can be established between systems with a single ballot and multiple ballot systems. In the former, all the candidacies that run in the election appear on one single ballot, on which the voter has to indicate his or her preference. In multiple ballot systems, each candidacy has their own ballot, so the voter has to choose the one pertaining to the candidacy of his or her choice. In this case, the electoral administration must guarantee that all the ballots are available in similar quantities and placed in accessible locations.

  Another classification, partly coinciding with the previous one, can be established between systems that only permit voting with ballots officially manufactured and duly checked by the electoral administration, so the citizens will only have access to them at the time of voting, and other systems, normally with multiple ballots, in which an official model of the ballot is approved by the administration and the necessary number manufactured for voting. But this does not prevent each candidacy from producing their own ballots according to the official model and distributing them among their voters who may use them to vote.

  No doubt the most adequate and the most widespread procedure is the single ballot manufactured officially. Allowing candidacies to produce their ballots does not hold any apparent advantage and has at least three clear drawbacks:

  • potential to become an instrument of electoral fraud, insofar as it considerably reduces the guarantees of a personal nature and the secrecy of the vote
  • can hamper and slow down scrutiny operations, as doubts may arise about the validity of the ballots;
  • enhances the costs of the elections considerably, as the state is not only obliged to produce a disproportionately large number of ballots, but in addition, those manufactured by the parties are normally considered as electoral expenses and their mailing is financed publicly.
  As far as their contents are concerned, ballots must include the names of the candidates and of the candidacy that they represent. It is also very common for them to include the symbol of the candidacy, as a means of facilitating voting for illiterate voters. To the same purpose, a photo of the candidate or those heading the lists, is included, although the cost is substantially higher. This is all the less justifiable if it is in colour or on very thick paper, taking into account it's use as a voting instrument.

  As a rule, the item of the budget assigned to ballots is considerably high, often for reasons that cannot be justified from the point of view of freedom to vote, an especially undesirable situation, considering that the expense is strictly for a transitory transaction. For financial considerations, the ballot, as a voting instrument and not as electoral propaganda, must be operational and yet economical, as simple as freedom and secrecy of voting will permit.

  Other Materials

  As additional guarantees to these characteristics of the right to vote, some systems specify that the ballots must be put into electoral envelopes and that there must be a voting booth available to the voters where they may cast their vote.

  In many systems, it is compulsory to use the booth and in others it is simply a choice to the voter. Often it depends on whether it is single or multiple ballot system.

  Across the board, it can be said that envelopes are an unnecessary, costly and intrinsically bothersome element or that it at least slows down vote counting. This is something that can easily be overcome by making the ballots from slightly thicker paper.

  On the contrary, compulsory utilisation of the booths is an advisable practice, of high pedagogic value, even in countries where the right to vote cannot be doubted at all. The use of indelible ink we have already mentioned is also considered as material for guaranteeing the democratic nature of voting.

  Finally, the basic electoral material is completed with a record or records that contain the electoral results and the different incidents that occurred at each voting station. These documents acquire extraordinary importance in the electoral processes insofar as the official count and the assignation of the relevant seats are normally based on this type of record and not directly on the votes (see Close of Voting).

  Because of this, plus taking into account that in addition, in the vast majority of countries, they will be completed by citizens who do not possess any special knowledge on the matter, it is absolutely indispensable for the forms to be very simple, understandable to any citizen.

  The lower the social and cultural development of the country in question, the more exponential the need for this. Curiously enough, this essential aspect for the execution of an electoral process, does not usually receive the attention it deserves, neither by the electoral organisations nor by the international organisations that monitor the elections.

  The importance of these records is also reflected in the fact that normally they are completed at least in duplicate and they have to be sent to the electoral authority by alternative procedures, in an effort to ensure that they are there on the day of the general review when they are indispensable.

  Security

  The execution of the electoral operations on voting day requires sufficient protection on the premises to avoid any disorders aimed at disrupting the voting and to guarantee that the right is asserted under the appropriate democratic conditions.

  For this reason, according to the electoral procedures, it is quite common for 'public authority: status to be granted to the presidents or supervisors of the voting stations. As a result, one of their functions is to make the necessary decisions for public order, giving the appropriate instructions to whomever is to act as electoral police on the premises (see Security).

  In countries where democracy is most consolidated, these functions are entrusted to security forces and the military. They often perform special tasks in this regard, although there is no shortage of examples where this is not considered necessary.

  In countries in political transition, however, this choice is viewed with deep distrust because of the military's identification with the previous regime. This distrust can lead to the very costly and unreasonable appointment of a sort of specific civil police force under the command of the electoral organisation to deploy on election day.

  Experience has taught, however, that it is beneficial to give joint responsibility to the army in the fulfilment of such operations. Not only because of its efficiency and low cost, but above all because of the importance it has for the stability of a country to assign such missions of co-operation and strengthening of democracy to a military sector historically opposed to it, under the command of the civil electoral authority, and for the implicit educational element of this collaboration. It is also very important for public opinion to see collaboration among institutions in the fortification of democracy at times of transition.

  Thus, this is preferable to the creation of a fleeting, contrived and rather unprofessional electoral police force.

  Observation

  In consolidated democratic systems it is considered that electoral processes offer sufficient internal guarantees and that it is not necessary to establish observation and additional control systems. Thus, the combined action of the electoral organisation, the civilian voting station officials, the representatives of the political parties, being entitled to appeal before an independent authority on the decisions taken and finally, the existence of a free press is all sufficient guarantee of the honesty of the elections. Observation by international or politically neutral national organisations is not necessary, except perhaps on a very low key basis and with purposes other than ensuring the honesty of the process, in the form, for example, of international guests or small expert groups that can assess the overall functioning of the system and thus contribute to its eventual improvement.

  On the contrary, observation appears to be exceptionally useful in transition democracies. From this point of view, it is possible to establish a qualitative division or barrier of consolidation between the electoral procedures, according to whether or not they demand national or international observation. In this regard, observation must be seen as something that has to be overcome by all systems that apply it, although perhaps not so much attending the elections.

  During the eighties and the nineties, complex electoral observation operations were carried out by various international organisations in African countries (Uganda, Mozambique, Angola, South Africa, etc.) as well as in South American countries (Salvador, Nicaragua, etc.) as a form of collaboration in political transition processes (see Election Observation.)

  However, since 1986, non-government organisations (NGOs) that often assume the same role, with international aid, have begun to emerge as an alternative to the massive operations of international electoral observation, the cost for which was becoming more and more prohibitive.

  As a pioneer in this field, mention has to be made of the National Citizens' Movement for Free Elections (NAMFREL) that (with the help of the Catholic Church) in the 1986 elections mobilised more than half a million Filipinos to control the presidential elections called by Marcos. Following this model and sometimes also under the auspices of the Catholic Church, SAKA was set up in Paraguay in 1991 and 1994, the Civic Alliance in Mexico in 1994, Transparency in Peru in 1995, and Transparency and Democracy in Guatemala in 1996.

  The phenomenon of national observation warrants an in-depth analysis. On the one hand, it is evident that this is a very advantageous alternative at a much lower cost than the international observation operations, and it undoubtedly contributes to creating national democratic consciousness.

  It is also an adequate procedure in countries such as Peru, where international electoral observation missions are legally forbidden, a prohibition that is not possible to get round adequately by resorting to the phenomenon of 'international guests'.

  However, it cannot be forgotten what all electoral procedures must aim to do without observation, which explains why this type of movement is in turn 'observed' with deep distrust by the electoral organisations and the political parties themselves, which at times see international funds intended for them now being channelled through these new NGOs. This distrust has even led to their efforts being hampered by legal or practical problems, as occurred initially in Nicaragua in 1996 and also in Peru in 1995, and their status and functions being regulated by law, such as in Estonia in 1996.

  In short, this is an ambiguous phenomenon, to say the least. It is very positive, if analysed as an alternative to the mobilisation of thousands of international observers, the vast majority of whom not only do not know the country, but in reality also do not know how elections are run. But it becomes a matter of debate when employed as an alternative for institutional strengthening of the electoral administration and the political parties themselves.

  Perhaps the key lies in its temporary nature meaning where electoral observation is still necessary, it is advisable to entrust it to a national organisation. But on the other hand, observation operations that now become useless, must not be supported given the development the ordinary mechanisms of guarantee internationally.

  Public Opinion Surveys and Exit Polls

  The majority of electoral laws establish a specific system for political surveys carried out during electoral periods, with the object of avoiding manipulation of the prospects of the different political groups through this channel that could eventually have an impact on the election results. Among the most commonly adopted measures are:

  • regulation on the features a survey must contain in order to be disseminated as such, including for example the name of the company that has conducted it, the date, the size of the sample and other technical details such as the error margin, the sampling system, etc., with all these specifications accompanying the dissemination of the survey
  • in conjunction with the foregoing, special powers of control over the dissemination of the surveys are granted to the electoral organisation, that usually include the ability to demand compulsory rectification by the media

  The dissemination of surveys is frequently forbidden immediately prior to the elections in countries that are politically as diverse as France and Peru. In view of the globalisation of communications though, it is getting more and more difficult to impose such prohibition. Its purpose is, however, clear: to permit the electoral organisation to order the rectification of surveys that do not meet the legal requirements before the elections are held.

  Another mechanism for gathering information about an election in progress--half way between surveys and quick count procedures--normally carried out by communication companies and not by the electoral organisations, is the 'exit poll', also called 'Israeli Surveys', as this was the first country that put them into practice (See Quick Count of Voting Result).

  As opposed to electoral surveys, exit polls are not concerned with the intended vote, but are based on the answers given by voters selected at random after they have voted. However, contrary to what occurs in quick count procedures, these are not results that have already been counted and verified after the closing of the polls, but what the person says he has voted. They pose two problems:

  In the first place, their reliability can be questionable. One might think that there is no reason why voters in stable democracies should conceal or lie about how they have voted, especially because nobody is under any obligation to answer in an exit poll. But in practice they often do. The majority of exit polls carried out in European countries over the past years have been failures. This phenomenon increases in the countries that are in the process of transition, where the fear in the minds of citizens might be well founded. This can give rise to inaccurate data being circulated, provoking confusion in public opinion and making it difficult for the defeated candidate to accept the results.

  In the second place, they might create situations in which problems of relative incompatibility regarding voter's secrecy could arise.

  Because of this, these systems are not at all advisable in countries in a political transition, to the point that on occasions, they have actually been forbidden, as in Bulgaria in 1990.

  Their effectiveness in consolidated countries is not clear either, where more and more advanced quick count systems enable real and fully reliable data to be obtained in a very brief period of time.

  In short, the exit polls imply additional disruption of the processes in countries in a political transition. In any case, it is a short-lived, costly and rather unreliable mechanism.

  Publication of Results

  Once the scrutiny has been done, results have been obtained at the voting stations and these have been entered onto the relevant voting record book, the results have to be transmitted to a central venue in each constituency, or even the country as a whole, for the authorised electoral organisation to do a new count to obtain the overall results of the elections and make them official. This process is known as the consolidation of the results or, in legal terms, general scrutiny.

  However, the official announcement of the results and the designation of the corresponding seats can be a slow process. On the one hand, it requires the physical transportation of the most relevant electoral documents from all the voting stations. On the other hand, the different candidacies have to be able to dispute again all complaints and claims made at the polling station and shown in the voting record book before the electoral management body in charge (see Results Reporting).

  All this means that the general scrutiny does not usually start until several days after the elections. And it is not uncommon for the official publication of the results and the taking of office for which the election was held to be delayed for over a month, even in the most developed countries.

  It is evident that in all countries a social demand arises for information regarding the electoral results which is often exacerbated by these time periods. Procedures have to be established, therefore, to permit provisional, but sufficiently reliable, results to be obtained within hours after the election.

  Quick Count of Voting Result

  At times, the electoral organisations arrange a more automated count of the results as a whole using the computer, fax, telephone, etc., which permits them to have an official, albeit provisional scrutiny of all voting stations within a few hours after the close of voting.

  It is, however, a very costly procedure, and its actual implementation depends on the communications capabilities of the country. It is an operation that can only be undertaken with certain possibilities of success in countries above a specific level of development. In other countries lacking the technological infrastructure, it can lead to spectacular failures, to the detriment of the credibility of the electoral organisations. A recent case of improper use of technology for the country was the 1995 election in Equatorial Guinea, in which they tried to use a sophisticated system of sending results by fax via satellite through Canada, at an exorbitant cost and with disastrous results.

  On other occasions, the option to do 'quick counts' is chosen, that is to say, counts of a meaningful sample of the total of the voting stations and then extrapolate those results. This is not an exit poll (see Public Opinion Surveys and Exit Polls), because real votes are taken into account. But neither is it a scrutiny, because the count affects a relatively small number of voting stations or ballots from each voting station. Quick counts can be organised by the electoral organisations themselves (though it is uncommon for them to do so because of the risk of announcing erroneous or misleading forecasts), by the political parties, by the media or by national or international observation organisations.

  Quick counts often serve a different purpose from obtaining reliable results fast, at times far ahead of the results being announced officially (Haiti in 1990, Bulgaria in 1991 and Albania in 1992). Quick counts, then, are more often used to verify the information offered by the electoral organisations independently. When its essential purpose is to act as a mechanism of control, above all in elections of political transition, they are referred to as parallel counts or parallel vote tabulation (PVT).

  Regarding their intents and purposes, it has been indicated that quick counts have:

  • prevented manipulation of the results (Philippines in 1989 and Panama in 1990)
  • convinced the party in power of the necessity to accept unexpected results (Chile in 1988 and Nicaragua in 1990)
  • convinced the opposition that the victory of the governing party was above board, in spite of the fact that there were suspicions of fraud (Paraguay in 1989 and Bulgaria in 1990)
  • even substituted the count itself, since there was a long delay in the official count and around 25% of the votes were never counted, as occurred in 1990 in Haiti with the count carried out jointly by the United Nations and the OAS, in spite of the fact that it was a very limited sampling of 1% of the votes and had been designed only to find out whether or not a second round was necessary.
  One of the primary decisions to be made when doing ordinary quick counts or counts aimed at being instruments of control, such as parallel vote tabulation (PVT), is what size the sample should be (i.e., what percentage of the total votes they should comprise), to avoid significant mistakes. It is very difficult to establish a universal model for a quick count sample size. It is, however, possible to pinpoint which factors will contribute to whether it has to be greater or smaller.

  The more consolidated democracy is in a country and the longer the essential elements of the electoral system have been in place, the quick count sample size can be relatively smaller. The historical introduction of data processing techniques to tabulate electoral results permits the establishment of polling station types that, one by one or jointly, systematically obtain similar results as those throughout the national territory, so a quick count can be done exclusively on them. On the other hand, the less these conditions exist, the bigger the sample will have to be, which is of particular significance in transition elections, most in need of PVT mechanisms.

  The sample size will also depend on the degree of political, social, cultural, ethnic and even religious homogeneity of the country and on the existence of politically decentralised units with their own subsystems of parties. Obviously, the more politically significant factors of this type there are that have to be taken into consideration, the larger and wider the sample will have to be.

  The type of popular consensus on which the count has to be made also plays a part. No doubt the simplest count is when there are only two possible choices (e.g., in a referendum or in the second round of a presidential election), and it becomes progressively more complicated as the options, or voting choices, and the possibilities of personalisation of the vote increase.

  Lastly, there is the degree of uncertainty about the subjects making up the quick count sample. When there is no stratification model of the population according to particular pre-set features (socio-economic, cultural, sexual, racial, identification with political models, etc.), one has to fall back on samples that do not contain any differentiation, which means that their size has to be increased considerably. This is what normally occurs in transition periods, especially in developing countries.

  As a consequence of all these factors, the size of a quick count, in order to be reliable, remains universally variable. At the one extreme we would have the experience in the presidential elections in the United States, where there is a suitable combination of all the factors. This means that it will be possible to carry out a quick count of about 2,000 ballots for the whole country. At the opposite extreme is the experience in the Philippines in 1986 in which MANFREL did a quick count of 70% of the voting stations.

  On the whole and probably in a rather random way, one might say that there is an inclination towards doing quick counts on 10% of the population in the case of transition elections (e.g., Chile in 1988, Panama in 1989 and Bulgaria in 1990).

  It has already been pointed out that quick counts can be carried out by political parties, mass media or by national or international observation organisations. However, in the interests of preventing electoral fraud, they will have more impact and greater importance if they are done by people who are independent of the electoral contenders. In this regard, the most independent quick counts have been those done by non-partisan national or international observation organisations, especially because of the international recognition that they have gained.

  Precisely because the organisations that do quick counts are independent of the contenders and see to it that the process is above board, is not uncommon for them to clash with the electoral organisations legally commissioned to perform the same tasks and that indirectly become subjects of control. Thus, in Bulgaria in 1990 the Bulgarian Association for Free Elections had to cope with great official difficulties, including a prohibition by the Central Electoral Management Body on circulating their results the day before the elections, which was overruled only at the eleventh hour. In Nicaragua again, in 1990, the United Nations and the Organisation of American States reached a kind of compromise with the Supreme Electoral Council, duly fulfilled, consisting of not disseminating any results before having a formal consultation meeting with the said electoral organisation.

  In spite of the overall favourable results of the quick counts, it cannot be forgotten, however, that these operations are closely linked to electoral observation and to transitional processes. As already indicated when we referred to observation in general, therefore, their very success in contributing to the strengthening of democracy will inevitably lead to their demise.

  They are, therefore, manifestations of growth that will tend to be substituted by the administration's own quick count mechanisms to offer provisional results and for the control of the operations of these organisations by the political parties. All this, naturally, occurs within the context of a free press, without which all these mechanisms would be devoid of meaning.

  Vote Counting by Electoral Bodies

  The general vote counting is the official count of the results of each constituency done by the electoral organisations in a public action in which participate of the candidacies that have taken part in the elections participate. The process normally includes the following phases:

  • the documentation received from each voting station is analysed;
  • the candidacies lodge their relevant complaints and claims about voting station activities that appear in the official records;
  • then these are either accepted or rejected and, consequently, the results of such voting stations are taken into account, modified or annulled.

  Once all of them have been checked, the results are added together and made official, at the same time attributing the corresponding seats to each candidacy in the relevant constituencies.

  In this activity, common to all electoral processes, the application of the legal principle of the most favourable interpretation of the assertion of the right to vote can be corroborated, whatever their existing model of electoral organisation may be. It is an essential criterion by which to judge the electoral processes, so in accordance with the maxim utile per inutile non vitiatur, the annulment of results is restricted to the minimum, so annulment only occurs when the flaws detected affect the final results of the elections.

  To quote the Spanish Constitutional Court in its Sentence 26/90 of 19 February: 'the annulment or non-inclusion of validly cast votes in elections undoubtedly means the denial of the assertion and effectiveness of this right, therefore, maintaining this will expressed by valid votes must constitute the preferential criterion when it comes to interpreting and applying electoral procedures. And from this perspective it is clear that, even though the result of the voting has to be protected against manipulation and fraud that would alter the will of the people, the effectiveness of validly cast votes cannot depend on irregularities or minor inaccuracies, that will always be common in an electoral administration which is not specialised and which, with regard to voting stations, consists of citizens designated by the drawing of lots. The principle of conserving valid votes appears as pre-eminent.'

  On the other hand, it is worth paying special attention to the responsibility the political parties have when it comes to delimiting the scope of discussions during vote counting. At this point, the scheme whereby the political parties have representatives or vote counting inspectors that try to be present at the majority of the polling stations becomes very relevant, as they possess their own data on the count and try to make them valid in case of doubt or discrepancy.

  It is evident that parties that have participated at all the voting stations are in a position to carry out a genuine monitoring and control of the general scrutiny operations. Once the scrutiny has been done, the electoral organisation makes the results known publicly (see Challenging Results). Except in countries where the electoral administration forms a fourth power of the state, whose decisions are cannot be revised by any of the other state powers, this is not yet a final announcement.

  Usually, a term is set for possible appeals against the results or the appointment of those elected, on behalf of any of the candidacies that have participated in the process. Depending on the internal regulations, the ordinary judiciary or the constitutional court acting as the electoral court will be commissioned to resolve these appeals. They are characterised by four points:

  • with regard to their legitimate subjects, they are usually reserved exclusively to the contenders in the process that have directly benefited from or been harmed by the decision;
  • as far as their object is concerned, the procedures are usually ruled by the principle of preclusion, that is to say, they have to deal with issues already discussed at the polling stations and at the general vote counting;
  • regarding the scope of control, the courts also have to apply the principle of conserving the valid records referred to when the electoral administration was discussed;
  • proceedings should be concise with very swift resolutions, because of the very nature of the issue being argued.

  By and large, the electoral process is formed as a continuum, so a matter that was not reported before cannot be reopened in a subsequent phase. The aim of the electoral regulations is for these processes to be resolved by the time that the organ whose election is being disputed, has to be officially constituted.

  Sanctions for Specific Electoral Offences

  When dealing with illicit conduct that can be committed during an electoral process, two large categories should be distinguished:

  • specific electoral offences, which are an assault on essential elements within an electoral process
  • those which, although aimed at hampering or interfering with the electoral process, violate the laws of the land
  Anyone who purposely tampers with the voters register, changes a ballot slip placed into the ballot box by the voter or tampers with the voting record book in a voting station to favour a candidate commits an electoral offence, as it is an assault on specific elements of the process.

  Someone who murders the president or supervisor of a voting station or places a bomb at the headquarters of a political party competing in the elections, certainly has an affect on the electoral process, but the impact of their conduct reaches beyond that limited context to become a larger crime against society covered by the laws governing society as a whole. Since crimes of this nature do not fall within the purview of electoral law or regulation, they will not be discussed here.

  Thus, any unlawful conduct implying an assault on a legal asset directly related to an electoral process is considered a specific electoral offence, e.g., on the constitution of the voting stations, the count, the truth in announcing the votes obtained by the candidates, etc. They are not considered special offences in the sense that they have to be judged by special courts or that they protect certain persons with specific authority, although the organisations that apply the sanctions are referred to further on, but conduct that violates specific precepts of election regulations. Such conduct should be regulated in accordance with the principles peculiar to criminal law, such as:

  • ideas, desires or intentions cannot be punished, but illegal conduct (active conduct or willful failure to do something) can;
  • principles of legality must be observed, that is, the offences should specifically be classified as such prior to seeking punishment of the offender
  • the legal asset protected is the free execution of the electoral process under the conditions regulated by the law and the constitution (ideal or philosophical conditions are therefore not protected, but legal assets that should be declared as such beforehand and protected by the law are);
  • must be determined whether or not someone is guilty of willful illegal conduct--a president of a voting station involved in an accident on his way there cannot be considered an offender because he arrived late or it causes problems in the composition of a polling station;
  • sanctions should be proportionate--the conduct of an official that does not display the voters list on the relevant notice board on the first day of the term set is not as serious as someone who tampers with the records, attributing votes to candidates who had not received them;
  • general penalties under the criminal law in accordance with the internal legal code of the country in which the offences are committed are applicable.
  • common, and reasonable, for criminal conduct of this type to also entail the deprivation of the right to active and passive suffrage and even the disqualification as a public official, should the offender be one;
  • electoral rights of anyone who has been unduly deprived, have to be reinstated, which sometimes presents unsolvable problems, e.g., a person who was not able to vote due to an error on the altered records, or a candidate that by mistake did not obtain any portion of the public funding that he was entitled to.
  The reason why these specific offences exist in electoral law or regulations is obvious--to protect the freedom of expression of the vote and the free and peaceful execution of the entire electoral process. The threat of a penalty must produce an effect of general and specific prevention, making prospective offenders think twice before attempting to interfere with the forming of the will of the people.

  But the peculiar features of one of these processes warrants special attention--the restoration of the legal asset assaulted and the swiftness with which it is done. If someone steals a book from the public library, it must be replaced, but there may be no particular urgency. If a public official unduly modifies the list of possible voters, it is imperative that anyone falsely excluded be put back on the voters list in time to vote.

  Legal Enforcement

  The characteristics of specific electoral offences determine who has to see to it that they are avoided or re-establish the legal order that has been violated. Legal systems are usually slow, as a consequence of the formalities of the processes and the periods that the parties have to be given to collect evidence pertaining to the prosecution and the defence. Countries in the throws of transition might, in addition, lack the technical capacity, the sufficient independence or the legitimacy necessary for their decisions on such sensitive matters, politically speaking, to be accepted.

  The same can be said about the investigation of the possible infringements, the necessary police protection or preventive control measures. An electoral process entails vigilance, control and prevention tasks, which are all the more costly in human and organisational terms the less firmly rooted the democratic system and the very state, considered to be a legal system that possesses public administrators and officials to assure that the law is maintained.

  The lack of an independent or sufficiently effective judicial system can be remedied by designating judicial powers for electoral offences to independent organs within the specific administration, under the conditions outlined further on. Establishing an effective and neutral police force might be a more arduous task. The possible alternatives will also be considered further on, such as employing the army and international aid. The final legal control of the whole process is a task of purely constitutional content that must fall upon the organisation commissioned with this task, e.g., the supreme court or the constitutional court, depending on the judicial model adopted in each state.

  In any event, these are two clearly differentiated tasks--those pertaining to the police (security, vigilance and the restoration of citizen safety, if necessary) and the judicial duties to decide on sanctions to be applied and the restoration of the goods or rights that were compromised.

  Legal Enforcement

  One of the basic functions of the Administration in an electoral process falls strictly within the so-called administrative duties of the police force--guaranteeing citizen safety and the freedom of meeting, expression and the other rights that are indispensable to an electoral contest. This is a task performed throughout the entire process and does not only mean guarding the electoral headquarters but also the actual free expression of the vote on election day (see Security).

  In countries emerging from a non-democratic regime, or evolving from an authoritative one, this task poses a variety of difficulties. On the one hand, the police force probably does not enjoy the confidence of the population, that previously suffered under it as an instrument in the service of the non-democratic regime. On the other, it is doubtful that it will be qualified to perform tasks that should essentially be peaceful and respectful towards rights that had not been observed much up to then.

  There is, however, no simple realistic solution. Just like other active elements of the administration, the police must be educated to the basic features of a police force in a democratic state ruled by law. This is an essential transition process in the construction or reconstruction of the administration as a whole. It is no doubt a process that can be initiated from new legislation, observing the rights of the citizens and democratic freedom, supported by international aid and the presence of international observers. But only the existing police force, and the army, when applicable, can be entrusted with the practical execution of these tasks, regardless of whether they are run by the outgoing government or are under the functional control of the electoral administration.

  History reveals greatly varying degrees and time spans of evolution, which can undoubtedly be explained by the circumstances of each country.

  It is not easy to compare cases like the Spanish transition, when a generation had already passed since the Civil War and Franco's regime had evolved from totalitarianism to a an ever-guarded progressive opening-up with pronounced authoritarian components, with abundant examples in Latin America, where the police and the army have been active anti-democratic agents.

  Nor is it possible to pinpoint common consequences among essentially democratic and developed regimes, even though they may have gone through phases of authoritarianism, such as Turkey and others that evolve from single party totalitarian regimes, like many of those that stem from decolonisation or former states of the East Block. Even within these, the qualitative difference is obvious between those which, at one time, had a constitutional system (Czech Republic, Hungary, Poland) and those which have only suffered various forms of tyranny.

  The employment of the army poses similar problems. In states moving towards democracy from severe internal conflicts or even civil wars, the army, which until shortly before, was one of the adversaries, can offer few guarantees of impartiality in an electoral process. Nonetheless, events such as the 1996 general elections in Nicaragua makes one wonder whether it would not indeed be possible to use the army in the material organisation of the elections, contributing some logistical capacities in the country that would otherwise not be available, whilst at the same time benefiting from this participation to strengthen its institutional prestige in the service of the new democratic regime.

  Courts

  The role of the courts in the sound development of an electoral process varies, depending on the legal traditions and the administrative organisation of the elections. In addition, their effective activity is determined by the political and institutional circumstances in each emerging situation.

  Above all, the degree to which court procedures are applied to the electoral process itself varies, depending on whether this is produced by the integration of judges and courts into the electoral administration or by the specific control that they have throughout each phase. Systems in which the electoral process is run by a specific independent organisation usually have a prominent complement of judges, priding themselves on their independence and legal knowledge when it comes to solving conflicts.

  Electoral Offences

  But of special interest here is what action they will take in the face of infringements pertaining to the electoral procedures. In reality, the range of possible serious infringements covers each and every phases of the electoral process. Electoral law essentially regulates a procedure that permits each citizen with the right to vote to cast it freely, the candidates or supporters of each one of the different candidates or referendum options to request their vote, and the conversion of the votes in the regulated way to determine which are the winning candidates or positions.

  In each of its phases, it is possible to have behavior that may prevent the smooth running of the elections:

  • presentation of a candidacy may be illegally limited;
  • the electoral register may be tampered with and therefore compromised;
  • electoral propaganda may be held up or wrongfully favoured by public employees;
  • illicit means may be employed to canvass votes, such as coercion, bribery or fraud;
  • propaganda may be contradictory to the truth or to the rules established to safeguard respect towards the adversary;
  • propaganda may be made at forbidden times (the day of reflection) or in forbidden places (headquarters of public institutions), or by employing unauthorised means (violence, abridging individual rights or public freedom);
  • the ballot paper of certain parties may be missing;
  • public mass media may be used unfairly in support of one candidacy over another;
  • a candidacy that has the right to public funding may have been deprived of it;
  • the voting itself may be limited or subject to coercion, or the presence of the representatives of the candidacies limited illegally;
  • some of the persons in charge may try to forge the results.

  Unfortunately, the possibilities are endless. Each one of these transgressions poses two legal problems of a different nature. It must be determined which persons were responsible for what illegal conduct so as to sanction them. But just as important, and requiring greater speed, is that a stop must be put to the forbidden conduct to re-establish the violated rights. The campaign that has been obstructed must continue; anyone unduly excluded from the voters list must be permitted to vote; or any candidacy that met the requirements and had not been accepted, must be able to run for elections.

  There are two basic models in this regulation:

  • systems that try to classify each kind of illegal conduct accurately, establishing a system of penalties in proportion to how serious the infraction
  • systems that leave the interpretation of broad clauses in the hands of the judicial or administrative organ commissioned to adjudicate them (the prohibition of making propaganda by inadmissible or improper means, impeding the free assertion of the vote, etc.)

  Principles

  It must not be forgotten, on the other hand, that the intervention by the courts in the control of the process must be considered as the ultima ratio. An electoral contest in which they continually have to intervene to settle disputes reflects the immaturity of the system, in which the regulations have not been fully assumed by the candidates in opposition and in which it is foreseeable it will be difficult for those who are in the minority to accept the results.

  The rule of thumb should be the opposite--a basic agreement on the development of the process, which includes the acceptance of the established or agreed rules and a simple and swift form of resolving conflicts. Ideally, the role of the judges and courts that are not incorporated into the electoral administration must remain limited to the sanctioning of serious infringements that do not fall under the latter and to the established resources when making their decisions.

  This supposition of minimum intervention has another principle as a consequence, to a certain extent related, which is subordination--the conflict must be solved by the authority below or closest to the problem.

  Thus, in the case of local elections, preference must be given to action by the electoral administration for that place or the judicial bodies on that level. It is true that the need to guarantee equal solutions determines that the judicial or independent bodies on a higher level have to be able to establish homogeneous criteria for different solutions by the local authorities. But it is preferable for the first solution to fall upon them, as long as there is a minimal structure that makes this possible, so that the response will be faster and more immediate and to avoid that local problems develops excessive relevance because of the category of the body that has to solve them.

  Their intervention must be guided by principles of stringent procedures and speed, given the brief and preclusive nature of the electoral periods. The procedures should limit formal requirements to the minimum, strictly specify the object of the conflict, the parties that may intervene and the proof that can be furnished, and set very brief periods for resolution.

  Powers

  The internal rules in each state that determine which judges should hear which electoral conflicts are as varied as their legal traditions and their territorial organisation. The contents and the possible legal consequences of their intervention also vary, with generally two opposite poles:

  • countries with a tradition of a code system, in which judges are subject to a principle of classification of offences and strict rules on procedures
  • the common law countries that have greater freedom in both respects
  It must be noted, though, that in the case of the former, there is a greater flexibility when those entrusted with solving disputes on electoral matters are independent and not judicial organs, such as electoral boards.

  In this regard, the need to re-establish damaged rights is determinant: it is only possible to avoid the effects of undercover or illegal advertising if the court order demanding that it be ceased is fulfilled at once; the illegal exclusion of a candidacy or the absence of a voter on the register can only be corrected if the solution is put into practice within a question of days or hours. In the face of this urgency, the excessive red tape and the sluggishness of traditional written procedures in the legal systems of Latin origin, for example, fall short.

  The same can be said regarding the usual appeals against the decisions of the bodies acting in the first instance, as this is about guaranteeing essential political rights. They must be clearly regulated proceedings, have brief time limits, an object of proof strictly limited to the core of the conflict and the decisions must be executed in a peremptory manner.

  Conflict and Dispute Resolution

  Each phase of an electoral process can give rise to conflicts and complaints about decisions of the electoral administration. One must, however, distinguish the possible complaints by considering their cause, effects and the entity involved: a single mistake on the voters register cannot be handled the same way as a political party with a powerful representation that has been excluded from a candidacy; neither can a complaint, because of an interruption of an electoral meeting, be treated like the fraudulent naming of a candidate that received less votes than his opponent.

  The electoral systems, in turn, can leave the solution of conflicts of this kind to three types of bodies:

  • the electoral administration itself (whether in its purely administrative capacity or as a special electoral court)
  • the ordinary courts of justice
  • the organs that control constitutionality
  Each of these possible bodies requires one prior condition--it must possess an effective statute of independence, and it must be recognised by the contenders, so that its decisions will be accepted peacefully by them and will contribute to the diligent honesty of the electoral process.

  See also Prosecution and Judicial Proceedings under Election Integrity.

  Systems for Conflict Solutions

  The institutional and political circumstances of each country largely determine its choice of procedures for the resolution of electoral conflicts.

  A state that undertakes a transition from an authoritative regime is probably faced with the need to facilitate the acceptance of the electoral results by strengthening such procedures in an undisputed manner, which is why it is difficult to leave it up to the ordinary judicial organs that had already acted under the regime from which they evolved.

  The case is different in states that are, institutionally speaking, not very highly developed, in which the electoral process is a step prior to the consolidation of a state structure based on the separation of powers. In these, a non-existent or underdeveloped judiciary can hardly be used, and the organ commissioned with the electoral process must be formed so that it can overcome this shortfall, as it will surely have to take the place of a public administration in handling disputes.

  The proposition is radically different in a politically and socially developed country where the judiciary is really independent and which has an effective administration. In such a case, it is also possible to leave the solution of a multitude of conflicts that may arise in each phase of the elections to the organ commissioned to run and execute them. The reasons would be efficiency, to assure unity on the solutions, the solutions are expeditious and that they are based on the technical knowledge of the organisation.

  However, the following requirements should be determined for the bodies that have to hear these conflicts:

  • a legal statute that establishes their composition with sufficient guarantees of independence with respect to the executive power and the contending parties or candidacies
  • acceptance of their legitimacy from this point of view by the electoral contenders, as well as by the voters at large
  However, an examination of different national systems shows highly varied solutions concerning the formula chosen to organise the successive measures of control and guarantee the independence of the bodies that implement it. The following national examples are representative of this diversity:

  In the Federal Republic of Germany, any decisions regarding the candidacies, defects that can be rectified and the rejection of defects that cannot be rectified, have to be made by the electoral directors at the respective territorial levels, appointed by the federal government or the government of each of the federated states. It is possible to appeal against their resolutions before the electoral policy body at the relevant level, whose members are also designated by the respective executive powers, directly or indirectly. These organs have the task of imposing sanctions for regulatory infringements (e.g., for the publication of surveys at forbidden times). The Bundestag is responsible for the review of disputes related to the electoral results, and their resolutions may be appealed before the Federal Constitutional Court. The weight that the executive power carries in the designation of the members of the organs that hear and resolve the essential conflicts is evident, the swiftness with which they are solved is remarkable, and the possibilities of access to independent organs is limited, without the legitimacy of the system or of the electoral results having been questioned.

  Spanish law aims at strengthening the guarantees of independence of the bodies that intervene in the resolution of all kinds of electoral disputes. Therefore, the electoral bodies are composed of judges and magistrates chosen for each territorial level by the drawing of lots, along with professionals in law nominated by the legislative power at the proposal of the political groups represented. In addition, the naming of candidacies as well as of candidates-elect can be appealed before the constitutional court.

  A third example is the 1996 Mexican electoral reform. In order to strengthen the guarantees of independence, transparency and control, the executive power has been denied all participation and representation in the Federal Electoral Institute (FEI), an independent organ commissioned to run the entire electoral process. The appointment of its members is left to the legislative power, demanding reinforced agreement to assure sufficient consensus. The structure and the permanence of the FEI, in turn, are considerably strengthened, and it is also in charge of subjects related to the recognition, funding, access to the media and other matters pertaining to the political parties. On the other hand, the Electoral Court is incorporated into the judiciary, before which it is possible to appeal the rulings and resolutions of the electoral authorities, that can affect the final results of the electoral processes.

  In Mozambique in 1993, free and fair elections constituted the basis on which the institutional and technical conditions that were lacking in the country could be created, in the midst of conditions in which there were an absence of logistical capabilities, mutual distrust and an extremely weak administration. In cases like these, the whole electoral process is a continuous effort to develop the system and the electoral infrastructure, under the management of an independent executive body that disposes of substantial international aid and carries out activities based on consensus to overcome the material, technical and political problems that emerge at each step. This will be the organ that, in accordance with constructive and agreed upon criteria, will have to solve the conflicts emerging in a process that must aim not only for electoral results that are recognised as legitimate but, also, a new electoral system that will permit its continuity.

  Conflicts and Phases of the Process

  At each stage in the electoral process typical conflicts can arise that are worth a closer look. The proposal, evaluation and announcement of the candidacies to take part in the electoral process is of evident importance, since it implies the formalisation of the terms of the electoral contest by establishing who will participate in the election, benefit from public aid, appear on the ballots and possibly be elected.

  The electoral authority has to examine the candidacies put forward to ensure that they meet the requirements and inform their representatives of any deficiencies. The purpose of this is the fulfilment of the law, both in the positive sense (anyone who meets the formal, fundamental requirements demanded by the electoral procedures and wishes to be a candidate may be one) and in the negative sense (only the candidacies that meet the said requirements may take part). On the other hand, in no case may it be a discriminatory examination, nor may any criteria other than those legally established for this evaluation be applied.

  The electoral administration must be guided by a positive attitude, to point out possible deficiencies and, whenever possible, allow candidates the means to correct them in time to become eligible to run in the election, without burdening or disabling them with unreasonable bureaucratic procedures.

  The rectification of formal or documentary deficiencies must be supported by prompt notification in order to facilitate legitimate candidates being able to stand for the elections. As a rule, the omission of some name on a list, the absence of substitutes, the fact that some of the candidates do not appear on the voters list due to a material mistake, etc., must be considered as rectifiable. In short, these would be elements which would not normally cancel the right to passive suffrage, unlike being underage, not being a citizen or having a criminal record.

  It must not be forgotten that the proposal of a candidate must be made in accordance with established procedures, but such formalities cannot be converted into a bureaucratic barrier that will limit the participation of those who meet the fundamental requirements.

  Should the electoral administration not grant admission to a candidacy, it should be possible to appeal to a higher authority, which will consider the relevance of the deficiencies indicated impartially and in accordance with the laws. The decision of this authority must be timely, to enable the candidacy to run in the election, if approved, and not draw the electoral process out with exasperating delays.

  There is no general rule concerning the nature of the authority that has to resolve these appeals. In some cases, it is simply a superior administrative authority. In others, it may be a body of the ordinary jurisdiction that will hear the matter. National cases in which the ruling is entrusted to the constitutional court are not unusual, as it is a fundamental and critical decision in the electoral process.

  Throughout an electoral process one feature is constant--each new phase means the closing of the previous one, so that the deficiencies that were not alleged in the first phase cannot be proved in the next. This is required because of the very nature of the process, made up of a succession of stages in which a number of operations that will determine the subjects and the rights that will be in force in the following phase must be completed within very short periods.

  The launching of the electoral campaign, therefore, means that all possible problems that emerged in the phase of proposing candidacies have been resolved. Likewise, any complaint that had not been lodged in the form and at the moment legally established during the campaigning phase, cannot be opposed at the time of counting the votes or when the results are announced. This is an essential principle throughout the electoral process--the preclusiveness of each phase. This means that once all the appeals have been resolved in the very short time limits set for this purpose in any one phase, any other defect not raised at the right time and in the right form is overridden by the next phase.

  In the course of the campaign, conflicts of various kinds may arise involving such issues as existing public aid, the material activities of the electoral campaign, and the electoral surveys.

  Each one of these poses its own peculiarities that have already been outlined in the corresponding sections (see Electoral Campaign). There is no uniform rule governing which authority should resolve the conflicts that may arise. In some systems it is the electoral authority, whether the designation is essentially the responsibility of the executive or of the legislative power, and it is of a predominantly administrative or judicial nature. What is indeed evident, however, is the need for the response of the authority to be immediate and feasible.

  Whether it be the denial of a public subsidy for the campaign, the banning of an electoral meeting, the use of advertising contrary to the rules on veracity or respect towards the adversary, the decision will only be effective if it is swift and executed immediately. The same goes for the publication of an electoral opinion poll at a time when it can no longer be disseminated. Only the effective intervention of the media in which it is to be published will guarantee the fulfilment of the electoral rules.

  Possible conflicts during the physical act of voting are equally numerous, from the constitution of the voting stations, the execution of control and counting tasks, the correct identification of the voters to avoid illegal or duplicate voting, to being truthful about the vote count and the formalising of the records containing the results. However, the core criterion in the resolution of the possible complaints or objections in this case is different. At this stage, equality in the use of the legal means is not what is sought, but, rather, deciding what validity a record with deficiencies should be granted or lose. The rule with respect to the ruling authority is equally variable, but in view of the material relevance of this phase--the casting of the vote--the tendency should be for it to be one of the highest rank and independence possible.

  Regarding the material decision, it should preferably be made in view of the proportional gravity of the offence. It is not reasonable to nullify the voting at a voting station because an accredited representative may not have been present or because mistakes had been made on the voters list. But any suspicion regarding a number of illegal votes, or a count without the legal guarantee that it will be made known publicly, can have devastating effects on the acceptance of the electoral results. Likewise, as a general rule, the repetition of elections must be limited to voting stations or constituencies where the final results might in fact have been different, should all the impeded or nullified votes have been valid, or should the voting stations where voting had been nullified due to irregularities represent an equally significant number of votes.

  The naming of the candidates-elect is the climax of the electoral process, therefore it must be subject to the greatest guarantees in the event it is impugned. Experience indicates that ruling on such objections be reserved to the highest ranking authorities, normally the legislative assembly itself or the court of justice at the same level as the elections, with the possibility of appealing to the superior judicial court or to the constitutional court where such authority exists.

  With regard to the consequences of these disputes, the aforementioned principle of proportionality must be applied. It makes no sense to repeat legislative elections because irregularities in a rather insignificant number of constituencies may have occurred, both from a financial point of view and from the point of view of possible erosion to the legitimacy of the electoral results. On the contrary, it is preferable to maintain the results on what is valid and to extract the tainted results. If in spite of the nullified votes, the results would not have varied, the announcement that had been questioned, must be maintained. If the fraud was formal, but it is possible to determine which candidate has won, it is also preferable to avoid the repetition of the elections. Only when the number of irregular votes is so significant that the results may have been different, would repetition be preferable and proportionate.

  In addition, the partial or overall objection to the electoral results must be governed by a special rule of responsibility on the part of the contenders. This is certainly the fundamental element of a basic consensus that must exist among them on the rules of the game. The legitimacy of the political system depends, to an extent that can hardly be exaggerated, on the fact that this acceptance occurs without unjustified formal or verbal objection or disagreement. For this reason, it is usually one of the core elements in the codes of conduct agreed upon among the parties or candidates to regulate an electoral process (see Legal Instruments (Doctrine/Theory)).

  Electoral Organisation

  There are as many types of electoral organisations. It would be very difficult to find two electoral organisations that are exactly the same, so no two coinciding doctrinal classifications of these organisations can be found either. Should such a case come up, it would be highly debatable and most likely found to be incomplete.

  In all countries, electoral organisations are created because of deficiencies in--or the lack of--one or both of the branches of government that represent the separation of power, the executive or the judiciary, to face an operation as complex and politically relevant as elections. The questions that all political systems must answer when it comes to organising their electoral processes are:

  • does an ordinary administration exist that acts with professionalism, neutrality and sufficient independence with regard to the political party that is in power to guarantee that these traits will be maintained when a possible alteration in power is at stake?
  • are the public opinion and the political parties themselves prepared to firmly believe in the neutrality of their administration in order to be able to organise them?
  • assuming that the public administration is neutral, is it sufficiently efficient and equipped with the necessary means for such a complex operation?
  • is ordinary judicial control sufficient to guarantee the adequate performance of the administration?
  • supposing that it is, can the judiciary be entrusted with the control over the elections?
  • or, on the other hand, does the judiciary lack the neutrality or the necessary means to carry out its function under the conditions required for an electoral process?
  Ideally, should a state be in a position to answer all six of these questions affirmatively, electoral organisations would be unnecessary, at least in the sense that we know them today.

  Naturally this does not mean that they will not need an electoral administration, just as an administration of forestry or health are required, but the specific elements arising from the holding of elections would not add any qualification whatsoever.

  There would be an organisation in the executive branch that would physically carry out the electoral operations, and its control, of no specific nature, would be entrusted to the traditional schemes of control of democratic countries, e.g., parliamentary control, judicial control, eventually an ombudsman who would receive complaints from the citizens, perhaps a control mechanism of public televisions through a parliamentary commission, etc. And, of course, a free press would be prepared to denounce any abuse by the executive power.

  At the opposite extreme, if none of the institutions indicated can operate adequately during the critical time of the elections, it will be necessary to create an electoral organisation that will be able to substitute all of them. It would have to be the executive and judicial powers, an administration and control organ, all in one, and independent in the broadest sense of the word.

  Scale of Distrust

  If we accept the theory that, with the possible exception of some federal democratically consolidated countries, the greater the political distrust in the ordinary and smaller institutions and the more restricted their legitimisation to adopt certain decisions, the more powerful and independent the electoral organisation of a country will be, then we could classify the different electoral administrations according to a 'scale of distrust', set out in the following sections:

  Maximum Degree of Confidence

  The greatest confidence in the democratic principles of its institutions is manifested in countries that entrust the administration of their electoral processes to their ordinary central and local administrative organs (Germany, United Kingdom, Sweden and Ireland), even granting them certain arbitration functions to solve disputes among contenders. The decisions they make can only be contested in the ordinary courts or the constitutional court, which will act as an electoral court, normally with special procedures and indictments that guarantee the resolution within a period of time suited to the electoral process.

  In short, this is a group of countries that considers that their executive, judicial and ordinary parliamentarian institutions are perfectly able to carry out the electoral operations in view of their neutrality and their procedures. And this premise is not questioned by public opinion. In this regard it is noteworthy that, for example, the Federal Registry Office in Germany, which is a governmental organisation, decides quite peacefully and without any real possibility of rancorous appeal, which candidacies may and which may not stand in the elections.

  Monitored Confidence

  On a another level, there are countries like Spain or Argentina that generally consider that their executive and judicial institutions are adequate to handle an electoral process, but at the same time they exercise a degree of control over the actions of the executive power and create a mechanism of arbitration as a prior step to avoid having to resort to a court. The latter cannot always resolve the appeals made against the naming of candidates or candidates-elect with the promptness required in electoral processes, so an electoral management body is created with powers of control over the processes and not of administration. They are temporary organisations that are formed upon the announcement of the elections and disbanded soon after any appeals against the announcement of those elected have been resolved. By their composition and duties, they are quasi-judicial organisations. Their members are largely practising judges designated by a random procedure (the drawing of lots and by pre-established order for each election), complemented with a minority representation of the main political parties appointed by parliament.

  They carry out functions of arbitration, normally in an executive manner, thus avoiding having to appeal to inevitably slow judicial processes. However, their decisions can be contested in the ordinary courts and, if appropriate, in the constitutional court by demanding due process of law. For example, the Spanish Constitutional Court declared an article of the electoral law, that on a certain matter had been interpreted in such a way that the decisions of the electoral management body could not be appealed against in the court of justice, as unconstitutional (STC 103/96 of 11 June).

  In short, this is a model that acknowledges the need to reinforce the ordinary operation of the institutions in the electoral process, but without casting a doubt on the fact that the executive power must be physically entrusted with the electoral operations, or that the resolution of legal disputes that emerge during an electoral process should in the last resort, be the jurisdiction of the judiciary. Electoral organisations that follow this model are therefore temporary reinforcements of the control structures of the executive power and mechanisms of resolution of extra- or pre-judicial conflicts.

  Third Level of Distrust

  Another level of distrust is manifested in the organisation of permanent electoral management bodies of a similar composition to those outlined above, but commissioned directly with the organisation of the elections, a task that is, therefore, taken away from the executive power. Since elections are not a continuous activity but these organisations are permanent, they tend to assume functions that are not directly electoral, for example, acting as a central civil registry or a census office. They also fulfil mediation tasks, but their decisions are not under the control of the ordinary judicial or constitutional powers.

  In short, this is a model in which the executive power is fundamentally distrusted, losing all jurisdiction in the organisation of the elections, but not so the judiciary. A different, parallel administration is created, but it is subject as such to the judiciary. This is the model applied in countries such as Bulgaria, Israel, Jamaica, and New Zealand.

  Highest Level of Distrust

  The highest level of distrust is reflected in the electoral courts model--organisations that follow the previous two models in their composition but that not only supersede the governmental administration in the organisation of the process, they also assume all the mediation functions among the electoral contenders. Configured as a fourth power of the state, their decisions cannot be appealed, and they cannot be checked by any of the other powers--judicial, executive or legislative.

  This is an extreme model, based on the premise that the ordinary structures cannot operate with sufficient neutrality at a time when those who will hold the political power is being determined, insofar as they have a direct interest in the results since they are dependent on the party continuing to remain in the government for them to maintain their executive or judicial positions. This model is characteristic of Central America. A typical characteristic of these organisations is that normally they are better equipped than the administration, with a greater tendency towards professionalism and much more stable than the general state administration itself.

  Which specific model is adopted in each electoral system undoubtedly depends on the degree of consolidation that its democratic institutions have reached. In countries in political transition, the general rule appears to be the creation of a permanent electoral management body, appointed by parliament and with judicial roles as well, that will take care of the administration of the process, but whose decisions can be revised judicially in the last resort. This is the model that has been imposed across the board in the east of Europe (Poland, Lithuania, Hungary, etc.), as well as in Africa, and it has been encouraged by international organisations and other non-governmental bodies (NGOs) specialised in the subject. These countries have, therefore, opted for the creation of an ad hoc administration, that operates autonomously from the other powers of the state (the executive in particular) and is formed on a pluralistic basis.

  In general, this model has worked very satisfactorily in guaranteeing the acceptance of the results by the parties previously in power. It has, furthermore, had the added advantage of being a very adequate channel of international collaboration and funding that could thus be offered to a neutral self-administrating organisation. This has at times permitted the country to be supplied with indispensable instruments in many other fields (such as the census or personal documentation of the citizens) that would not have been possible with national funds.

  It is, therefore, unquestionable that this is the right type of organisation to be formed for a political transition period. However, some doubts arise. As the transition process becomes more successful and a real separation of powers is structured that guarantees the rights of the citizens, that is to say, the moment a country goes up on the scale of confidence we referred to above, it becomes justifiable to wonder whether it makes sense to maintain an independent organisation to oversee elections.

  Another element is worthwhile considering. Electoral organisations are generally disproportionately costly compared with the standard public service structures of the country. This does not normally cause much concern, because it is considered that their mission to promote democracy must be valued according to criteria other than cost. It is characteristic that when transition elections are successful, nobody asks how much they cost, especially if they were paid for in total or partially with aid obtained through international co-operation. However, precisely insofar as the process is successful and democracy is normalised, cost considerations start to arise. International aid dwindles, and the cost of elections may then become exorbitant for the state in question. At this stage, the question may come up again of whether it makes sense to maintain a differentiated electoral structure, or whether costly political inertia is being maintained.

  Electoral Boundaries

  The constituency is the unit of conversion of votes into seats, normally on a territorial basis, but there are exceptions, such as the four Maori districts in New Zealand, those reserved in Portugal to its emigrants or to ethnic minorities in Bulgaria, Croatia and Slovenia. From this point of view, an overall vision of comparative constitutional law permits us to classify the countries into four large groups:

  Countries that use the whole of the national territory as an electoral constituency, which in practice means asserting that for electoral purposes, territorial division does not exist. This system is characteristic of geographically small countries with a strong identity and high degree of cohesion. This is the case, for example, in Israel and Holland. It leads to extremely proportional results and, consequently, great stability of the governments. It is also a characteristic choice for the election of multinational assemblies that do not have the election of a the head of government among their functions, like the European Parliament.

  Countries that use ad hoc electoral districts, periodically delimited and normally united to a majority system. As a consequence, these countries have to establish an electoral map that combines the fundamental criterion of the equal value with others that, to different degrees of intensity, aim to focus on other aspects of collective identity of the existing communities in that country and avoid an artificial political representation, alien to cultural, ethnic or other divisions, often referred to as 'communities of interests'. Problems may arise regarding the adaptation of the constituencies (originally or unexpectedly) and even of gerrymandering (politically motivated altering of boundaries of electoral districts). This procedure is used in Great Britain, in other Anglo-Saxon countries such as Canada and New Zealand as well as others influenced by them, such as Mexico.

  Countries that use existing geopolitical units as constituencies, which is normally linked to proportional elections in multinominal constituencies. It can pose problems regarding equality of voter insofar as there is a great disproportion in the number of inhabitants among them. The system is applied in countries such as Italy and Spain. From an organisational point of view, it is the simplest and the most cost effecient.

  States that use mixed constituencies, such as Germany and, following its example, Venezuela. The aim here is to combine the relative advantages of the large proportional systems and of the majority systems. To achieve this, a national constituency is established, with a very high electoral barrier that avoids excessive fragmentation of the chamber. The closeness among voters and those elected is maintained by the personalisation that majority systems provide. In practice, the great trouble with these systems is that they have a complex character and are difficult for the average voter to understand, especially in counties in transition.

  The Principle of One Person, One Vote

  The constituency is, without any doubt, one of the essential elements of the electoral system and as such, it will be dealt with in depth in another section of this work (see Boundary Delimitation).

  In terms of the legal structure of electoral processes, the central aspect that must be analysed are the effects of any of the possible ways of dividing the national territory in the fulfilment of the universal constitutional principle that demands an equal value to each vote, the principle of 'one person, one vote'. This principle allows the vote of each citizen to exert an equal influence on the forming of representation, regardless of the constituency in which they assert their right to vote. As a consequence, if it is a multinominal system, a number of seats must be assigned to each constituency in proportion to its population; if the system is uninominal, constituencies must be designed in such a way that they have the same number of voters.

  This problem is common to proportional and majority systems. However, in the first case, it is easier to solve, as it is simply a question of adding new seats to districts that are under-represented, if this is constitutionally possible. On the contrary, if uninominal districts are used, any modification of one constituency affects others, inasmuch as it implies a redesign that affects at least those closest to it.

  Consequently we will analyse the way this problem is dealt with in different countries that use a uninominal majority system, realizing that the demand for equal voting rights has undergone a different evolution in its practical application in different countries.

  In the first place, one must refer to the United States as an example of radical interpretation of the precept. The principle is established in Article 1, Section 2, of the United States Constitution: 'Representatives and direct taxes shall be apportioned among the several states...according to their respective numbers.'

  In Wesberry vs. Sanders (1964), the United States Supreme Court interpreted this article in the sense that the principle of proportionality should be practised as strictly as possible. From this emerged the standard 'as nearly as practicable', applied afterwards in, among others, Kikpatric vs. Preisler (1969) to demand that the states put good faith into practice to achieve the mathematical equality of the value of the vote in the determination of the constituencies existing in each state. Unequal values are only accepted if these have emerged in spite of the decisive actions of the state authorities to eliminate them.

  This system is complemented in the United States with a new census every year ending in 0, which was considered an added requirement for the application of the principle by the Supreme Court in Reynolds vs. Simms in 1964. In so doing, and on the grounds of the Fourteenth Amendment of the United States Constitution, the periodic review of the census was constitutionalised, with the objective of avoiding inequalities arising in the assertion of the right to vote as a consequence of population movements. In short, in the American system the principle of individual representation is absolutely dominant over values of collective representation, territorial or any other type of interest, to such a clear degree as is probably only possible in a relatively recent and very homogeneous society, in spite of its diversity. The Voting Rights Act of 1965 categorically emphasises the principle by asserting that it must prevail over any existing ethnic or racial division in a city, county or state.

  A much less strict interpretation of the principle, insofar as it is amended or played down by others that are considered equally worthy of protection, is applied in Great Britain. The four existing Boundary Commissions (England, Scotland, Wales and Northern Ireland), have to go by the criteria established in the Statutory Rules, such as the existence of a guiding total number, the attribution of a minimum number for Scotland and Wales and the need to observe the limits of the counties and boroughs of London. All of these have to be compatible with the principle that the electorate in each constituency must be as close to the electoral quota as the application of the rest of the criteria will permit.

  The idea underlying this compatibility of criteria is to avoid the creation of artificial communities whose only purpose is electoral. It is true that there is a certain inconsistency in organising political representation on artificial bases in the name of strict equality of voting rights. The very idea of making individual representation compatible with the representation of groups as forming elements of political representation has an unmistakably democratic basis. However, reality shows that the differences are considerable and that legal initiatives to place a ceiling on inequality have failed. For example, during studies carried out in 1947 that lead to the setting of general boundaries, the commission proposed that the maximum variation be 25 percent, which was rejected by the Labour Government at the time. There is no doubt that in this regard the British system is the result of a very slow historical evolution, in which the Rotten Boroughs and the traditional territorial basis of their nobility have not yet been fully overcome.

  Precisely because of this, a further problem emerges in Great Britain that tends to aggravate the situation considerably--the excessively long period that elapses between each general redistribution. Thus, since 1885, an overall reassigning of seats throughout the whole country has only occurred in 1918, 1947, 1969, 1983 and 1995.

  This same issue, worsened by population movements, has emerged in Mexico. As a result of not revising the electoral map for the appointment of 300 deputies that have to be distributed among the thirty-two States since 1978 (with a minimum of two per state), constituencies have been encountered that show inequalities of one to twenty in the number of inhabitants per constituency.

  Brief reference also should be made to Canada where many of the provincial boundary commissions have made relatively important corrections in terms of the principle in order to grant admission to the collective rights of groups of representation that have been identified, generically denominated as 'communities of interest'.

  The legal basis of this positive discrimination action in favour of specific communities is found in the Act on Revision of the Limits of Constituencies. Article 15 establishes that the division of each province will be made in such a way that the population of each one of them corresponds, as far as possible, to the quotient of the population and that as a rule the difference cannot surpass 25 percent. But it permits the provinces to observe these circumstances on the grounds of territory, to avoid excessively large constituencies in the north, surface-wise, or because of the existence of 'communities of interest.' This generic concept can be of territorial origin (for example, to avoid the division of certain municipalities or regions for purely electoral purposes), but also because of the existence of groups of citizens differentiated on ethnic, racial, religious, cultural or other grounds that are considered relevant when it comes to the division into constituencies and the consideration of which determines inequality in the value of the vote of the rest.

  Affirmative Action

  In structuring political representation, it is not easy to establish general conclusions regarding the value that should be attributed to factors--probably opposed--of personal, or individual, representation and the representation of groups.

  According to the argument generally put forward in favour of positive discrimination measures and multicultural views, it might be that placing all the weight on equal representation will not be the perfect solution, except in highly homogeneous societies.

  However, the principles of 'one person, one vote' and the equality of citizens in the eyes of the law is part of the finest democratic traditions since the French and American Revolutions, serving as the weapon that ended representation based on the class strata of society. The principle's current value and force are beyond any doubt, and it should continue to be the essential element of representation. In the majority of countries, adjustments due to the reality of the population structure are probably necessary. However, these should be maintained within limits that do not mean a repeal, not even partially, of the consideration of each citizen as an individual holder of rights of a political content.

  Indeed, in democratic terms it is not desirable to return to a modern form of representation based on the class structure of society, by means of identifying communities of interest who benefit through positive discrimination that ultimately affects the relative value of the citizens' vote as a whole.

  This type of measure might be effective when it comes to integrating communities that were traditionally excluded from the system. The reservation of seats to the Maoris in New Zealand (see Electoral Districts in New Zealand) or the Misquitos on the Atlantic Coast of Nicaragua have been justified this way. But if they are considered as an instrument for the improvement of the status quo and not as an element that perpetuates the differences, they should be of a clearly transitional nature.

  The contrary would imply faking democratic principles as they are conceived within the liberal tradition. In the latter, the will of the state is the reflection of the will of the citizens as a whole, equal amongst themselves and not an agglomeration of the expressions of intermediate groups made up of citizens by virtue of factors such as race, mother tongue or religion, whose accidental effects on democratic equality it is aimed to overcome and not to perpetuate.

  From another point of view, stemming from the constitutional duty of the political parties to work together to form the national will and as privileged instruments of political participation, it is evident that the tendency can and must be to fulfil the task of drawing traditionally under-represented or excluded social groups into the political process, even including quotas in their electoral lists wherever necessary. It will appear that it is in this field of free citizen membership, and not the field of legal impositions, that this scheme of equality should develop.

  Process of Electoral Reform

  The section Creation and Amendment Process outlines some of the essential legal problems that should be taken into account when undertaking an electoral reform, starting with a distinction between processes of creation (which means the complete elaboration of an electoral system, within a transition process, to a democratic system) and of reform, in which adjustments that do not imply a change in the political regime are carried out. The chapters to follow are not, however, limited to reform interpreted in this manner, but are designed to analyse the procedural elements that are common to all kinds of reform of any magnitude.

  Object of the Reform

  It would not be trifling to warn that the first requirement regarding the object of a reform process is to clearly define right from the start, what the purpose is and what result should emerge from it (a new general electoral law, the procedures that regulate a constitutional referendum, a law and the necessary administrative organ to carry out elections, etc.).

  The issue, in this respect, is not what purpose will drive a government to undertake it, which might be limited to aiming for its re-election with the electoral system that it considers most favourable, but the clear determination of the objective of the reform. This will avoid that it is dragged out unnecessarily, that the achievement of an agreement becomes infinitely complicated or the that acceptance of change on the part of the citizens and the political agents is invalidated right from the start.

  Minor modifications of a technical nature are relatively frequent in electoral laws, largely because they have to be so detailed and accurate, that they turn out to be inelastic and require continuous small adjustments. But prior specification of the objective of a reform is indispensable when it affects essential elements of the electoral system. Take the commission recently established to study a possible modification of the British electoral system, towards a more proportional representation: the Conservative party, historically the party that has benefited most from the current majority system, received the constitution of the commission with the warning that a proportional system would disfigure the British political system to the point of ruining it altogether.

  A third aspect relevant to the object of the reform is whether it should be limited to the reform of the electoral law or whether it should be extended to the procedures that regulate other elements of the system: the political parties, their funding or even the media. As a general criterion, reforms that do not heed all the aspects that intervene in the process will presumably have more problems, derived from internal inconsistencies. The reform must contain all the essential aspects, without leaving excessive margins for regulations on execution either. Experiences in countries such as Kenya, Gabon and the Ukraine, that opted for a quick reform, limited to the most pressing aspects of the electoral system and that subsequently had problems both with the effective operation and the acceptance of the legitimacy of the electoral system thus modified, can be put forward in favour of this criterion.

  The countries quoted are examples of a minimalist strategy in their electoral reform: the kind that aims for a fast and more controlled reform by the government that steers it, limiting the changes to aspects that are most immediately necessary for elections to be held. The results have been encumbered by problems of internal coherence between the reformed parts and those subsisting from the previous non-democratic system and have left a large part of the public opinion unsatisfied, insofar as, in such cases an electoral reform has a symbolic content that demands substantial visible modifications.

  Subject of the Reform

  There is no universal rule to decide which organ should be responsible for the implementation of the reform, or what the ideal composition should be. In principle, in a phase prior to its discussion and adoption in accordance with the rules of each legal system, a law of a certain technical complexity, drafted by a commission, must be it parliamentary or composed of independent experts or governmental specialists.

  An argument in favour of it being a commission made up of experts that are independent of the government and the main political forces is usually that its work will probably be more balanced and neutral outside the realm of economic interests of the political agents and perhaps even technically more accurate, insofar as the absence of pressures from any side will permit a more meticulous study of the needs and the most effective technical solutions. However, neither it is assured that in reality such exquisite conditions of neutrality exist nor is it evident what the designation procedure should be to guarantee its attainment. In addition, the participation of the political forces in the preparation of a reform that will affect one of their basic regulations must not be ruled out beforehand.

  On the one hand, it does not usually occur that the experts in constitutional law are so cut off from national political life that they are impervious to any partisan influence or to opinions that are not strictly scientific. Neither do the designation procedures of these commissions guarantee this neutrality beyond all doubt. Consider those appointed by the president of South Africa for the reform of the apartheid regime, or the commission appointed by the Azerbaijani president to draft the new electoral law. And some recent experiences where the commissions were made up of political forces were by and large positive, such as Mozambique, Senegal, Guinea-Bissau, Colombia, and El Salvador.

  The problem is not, in reality, so much the composition or designation of these commissions, as the general rules under which they carry out their duties. A commission open to the contradictory influences of the different political forces is preferable to those acting under the dictums of one of them alone. Likewise, a commission whose discussions are relatively transparent (without converting them into hollow bodies, unable to carry out their duties) is preferable to others whose secret actions sap public confidence by their results.

  As a rule, it is more important for the political forces to accept the overall composition of the commission and its projects with a degree of consensus, without which the success of any reform would not be easy, rather than forge an angelic neutrality.

  It is also essential for them to act within some general criteria agreed upon prior to the commencement of the work, including an express agreement on the objectives of the reform, an approximate time schedule and some working procedures that will facilitate technical quality and transparency. Reform processes such as in Tanzania and Morocco, whose gradualism was not necessarily objectionable, have, however, been criticised for their lack of clarity. The absence of a clear purpose, of accurate deadlines and even, in the Moroccan case, a regulation that would materialise the results of the progress, caused waning public confidence in the reform project.

  The recently appointed commission in the United Kingdom, chaired by an ex-labour minister, now in the liberal-democratic ranks, has the purpose of studying a possible reform that will make the British electoral system more proportional. However, neither has its composition been discussed, nor is it foreseeable that its conclusions will be, due to distrust regarding the expertise or the neutrality of its members.

  A more extreme example is the reform of the Spanish electoral system as one of the initial elements of political reform that culminated in the Constitution of 1978. The basic elements of the electoral system, later constitutionalised, originate from a Law for Political Reform drafted by a few people that were holding the main political positions in the post-Franco era and approved by the non-democratic chamber of the Franco regime.

  The need for widespread parliamentary consensus to approve the reform and the advisability of independent electoral organisations intervening in its implementation, or at least having a say, has already been discussed in a previous section (see Creation and Amendment Process).

  One final matter regarding the subjects of the reform is the advisability or need for a reform of this kind to be approved by the majority of the electorate in a referendum. It is evident that the electoral law must have maximum legal rank, because of its material relevance, as well as the advisability of reinforcing its stability and permanence also in a symbolic manner. But the internal logic of a representative democratic system neither demands the endorsement of that which has been agreed upon by the freely elected representatives of the people by means of a subsequent referendum, nor it is always recommended to thus aim for the reinforcement of its legitimacy. This can hardly be considered in experiences such as those in numerous African countries (Mozambique, Uganda, etc.) whose transition to a democratic regime has included a simultaneous effort to carry out a census, the law, the administration and the first electoral process. On the contrary, a process such as the Spanish political reform was indeed reinforced by a referendum that provided the proposed procedure with the legitimising support which the reformist government that promoted it lacked.

  Essential Features of Reform Procedures

  If electoral laws essentially regulate a procedure, the one employed in the electoral reform is of fundamental importance, for the material result of the reform as well as for its acceptance by the political forces and the voters in general. The basic features that should rule in a process of this nature, have already been set out: the greatest possible consensus among the political forces, transparency, clarity on its objectives, consistency in the results and swiftness in the finalisation of the reform.

  The specific manifestations of each one would obviously vary, depending on the socio-political conditions of the country and the reform strategy it adopts. A reform process which is not very ambitious, that seeks only to modify the indispensable elements of the electoral system as fast as possible to provide the country with a constitution or to legitimise its legislative and executive powers (the case, for example, of the Ukraine and other states that split away from the former Soviet Union), runs more risks of internal inconsistency and lack of consensus in the ultimate scope of the reform, than one that develops a democratic political system completely from scratch. The same can be said about countries that endeavour to reinforce or to intensify the already existing democratic elements without a constitutional break-up (of which the 1996 Mexican reform is a good example), as opposed to those which recover or build democratic systems from regimes that were not (the case in the majority of the Central European states after the fall of the wall of Berlin).

  But in all the cases one factor is especially relevant: the speed with which a reform aimed at modifying the electoral system, must be finalised. Because of the consequences of the uncertainty on the transparency and the real ends of the process, as well as an unstoppable discrediting factor that the existing system would go through from the moment its reform is commenced - or announced, a reform of this nature cannot be drawn out by periods that would not seem too long for similar reforms to a legal system.

  The requirement of consensus does not need much explanation: the electoral system establishes the basic rules of the game in the political system and it must have stability, otherwise an acceptably effective Government will not be possible. Overall agreement must therefore exist among the main participants. This does however not prevent discrepancies that may seem essential (e.g., on the majority or proportional nature, as is revealed in countries as stable as France and the United Kingdom), because there is a peaceful agreement on the rules that must govern in the event of any reform.

  Clarity on the objectives is definitely a prerequisite for consensus. Reforms such as that of the Peruvian Constitution of 1994, are considerably weakened by the perception, within the opposition and among the public, that their purpose was to permit the renovation of the mandate - and the reinforcement of the powers - of the president that instigated the reform, rather than other ends of a more general nature. The successive, gradual reforms in Morocco displayed a lack of a precise programme and a schedule that spelt out their ultimate ends.

  Transparency is the result of an accumulation of factors, among others, the designation of the material creators of the rules to be applied, the way in which the work is done and whether the inevitable (and necessary, in the interests of consensus) contribution of the criteria of the basic political forces is opaque or out in the open.

  All of them are favoured by relative speed in the process: a reform that is dragged out over years, can probably no longer be perceived as a genuine desire towards democratisation, as the Tanzanian experience has proved.

  The internal consistency of the new law, without internal contradictions like those in the legislation of the Ukraine pointed out above, without ambiguities (for example regarding the recognition of the democratic political parties) and with a reasonable aim towards permanency, is the best guarantee of acceptance and stability. There are no surer rules than those exposed, as proved by the success of processes as radically opposite as the Spanish process of 1977/78 and the Central European processes subsequent to the Velvet Revolution: the unequivocal will to democratise, clear in its objectives; reasonable consensus among the political forces; popular and international support, where this existed; transparency and speed in the process and consistency in the results.

  Sample Materials

  Most of the sample materials were downloaded from the Internet. Some were edited to reflect this site-specific interest on elections.

  The ACE Project partners support the principle of intellectual property and have asked the creators of all sample materials included in the ACE Web Site and CD-ROM for permission to use those materials. Any item for which permission is denied will be promptly removed and not used in any subsequent version of ACE.

  Argentina, Electoral Code

  Australia, Commonwealth Electoral Act 1918

  Belize, Electoral Law

  Bolivia, Electoral Law

  Brazil, Electoral Law

  Canada, British Colombia, Electoral Law

  Chile, Electoral Law

  Colombia, Electoral Law

  Costa Rica, Electoral Law

  Cuba, Electoral Law

  Dominica, Electoral Law

  Ecuador, Electoral Law

  El Salvador, Electoral Law

  France, Constitution

  Germany, Constitution

  Granada, Electoral Law

  Guatemala, Electoral Law

  Guyana, Electoral Law

  Haiti, Electoral Law

  Honduras, Electoral Law

  India, Electoral Law

  Israel, Electoral System

  Jamaica, Electoral Law

  Nicaragua, Electoral Law

  Mexico, Electoral Law

  Palestine, Electoral Law

  Panama, Electoral Law

  Paraguay, Electoral Law

  Peru, Electoral Law

  Dominican Republic, Electoral Law

  Switzerland, Constitution

  Suriname, Electoral Law

  USA, Electoral Law

  Argentina, Electoral Code

  Argentina, Electoral Code (PDF)

  Australia, Commonwealth Electoral Act 1918

  Australia, Commonwealth Electoral Act 1918 (PDF)

  Belize, Electoral Law

  Belize, Electoral Law (PDF)

  Bolivia, Electoral Law

  Bolivia, Electoral Law (PDF)

  Brazil, Electoral Law

  Brazil, Electoral Law (PDF)

  Canada, British Colombia, Electoral Law

  Canada, British Colombia, Electoral Law (PDF)

  Chile, Electoral Law

  Chile, Electoral Law (PDF)

  Colombia, Electoral Law

  Colombia, Electoral Law (PDF)

  Costa Rica, Electoral Law

  Costa Rica, Electoral Law (PDF)

  Cuba, Electoral Law

  Cuba, Electoral Law (PDF)

  Dominica, Electoral Law

  Dominica, Electoral Law (PDF)

  Ecuador, Electoral Law

  Ecuador, Electoral Law (PDF)

  El Salvador, Electoral Law

  El Salvador, Electoral Law (PDF)

  France, Constitution

  France, Constitution (PDF)

  Germany, Constitution

  Germany, Constitution (PDF)

  Granada, Electoral Law

  Granada, Electoral Law (PDF)

  Guatemala, Electoral Law

  Guatemala, Electoral Law (PDF)

  Guyana, Electoral Law

  Guyana, Electoral Law (PDF)

  Haiti, Electoral Law

  Haiti, Electoral Law (PDF)

  Honduras, Electoral Law

  Honduras, Electoral Law (PDF)

  India, Electoral Law

  India, Electoral Law (PDF)

  Israel, Electoral System

  Found at http://www.knesset.gov.il/description/eng/eng_mimshal_beh.htm

  ---

  The Electoral System in Israel

  Summary: Israel has an electoral system based on nation-wide proportional representation, and the number of seats which every list receives in the Knesset is proportional to the number of voters who voted for it. The only limitation is the 1.5% qualifying threshold. In other words, a party must receive at least 1.5% of the votes in order to be elected. According to this system, the voters vote for a party list, and not for a particular person on the list. Since the institution of the primaries system in some of the parties, these parties directly elect their candidates for the Knesset. Some of the parties elect their candidates via the party's institutions. In the ultra-religious parties their spiritual leaders appoint the candidates. The Knesset elections take place once every four years, but the Knesset or the Prime Minister can decide to hold early elections, and under certain circumstances can serve for more than four years.  The electoral system   Historical background  The legal basis  The principles    The frequency of elections  Who can participate in elections? The distribution of seats  Who is elected to the Knesset? The Electoral System Israel has an electoral system based on nation-wide proportional representation. In other words, the number of seats that each list receives in the Knesset - the House of Representatives - is proportional to the number of votes it received. Unlike most of the Western parliamentary democracies, the system in Israel is followed in an extreme manner, and the only limitation on a list which participated in the elections being elected is that it should pass the qualifying threshold, which is currently 1.5% (until the elections to the 13th Knesset the qualifying threshold was only 1%). Historical Background The State of Israel inherited the rigid system of proportional representation from the political system of the yishuv (the organized Jewish community) in mandatory times. This system was based on the zeal with which the various political parties - in which ideology and personalities played a major role - fought to preserve their independence. The justification given for the large number of parties resulting from the system was, that in a period in which major, far-reaching and rapid changes were still taking place in the population make-up as a result of immigration, it was important to enable maximal representation for various groups and opinions. The Legal Basis for the System The electoral system is based primarily on two laws: the Basic Law: the Knesset of 1958 and the Knesset Elections Law (combined version) of 1969. Since the Parties Law of 1992 was passed, only registered parties can present a list of candidates and participate in the elections. The Principles Upon Which the Electoral System is Based The general framework for the elections was laid down in article 4 of the Basic Law: The Knesset, and according to it the Knesset is to be elected in general, country-wide, direct, equal, secret and proportional elections. This article can only be amended by a vote of a majority of the Knesset members. The principle of the generality of the elections ensures the active right of every Israeli citizen, who is at least 18 years old, to vote and the right of every Israeli citizen, who is at least 21 years old, to be elected. Even though the Basic Law: The Knesset gave the legislator the power to deny the right to vote to anyone as it may see fit, the Knesset has never made use of this power. Those holding certain official positions, such as the President of the State, the State Comptroller, judges or dayanim, career officers, and senior civil servants, may not stand for election to the Knesset. However they can contend if they resign from their post 100 days or 6 months before the elections, depending on the public position, as the law specifies. The principle of country-wide elections states that Israel is a single electoral district insofar as the distribution of Knesset seats is concerned. Direct elections mean that the voter elects the Knesset directly, rather than an electoral college (as is the case in the election of the President in the United States). Equal elections apply to equality amongst the votes given, and the Supreme Court laid down that the principle of equality relates to equality of opportunities for all the lists participating in the elections as well. The principle of secrecy ensures fairness in the elections and aspires to prevent the placing of effective pressure on voters, since no one has any way of knowing how they actually voted. The principle of proportionality manifests itself in that all the lists, which get past the qualifying threshold, are represented in the Knesset by a number of members which is proportional to their electoral strength. The Frequency of Elections The Knesset elections are supposed to take place every four years. The Knesset can decide, by an ordinary majority, to dissolve itself and call for early elections. Under the direct vote for Prime Minister system, the Prime Minister could notify the President of early elections. After the abolishment of that system, the Prime Minister can recommend to the President to call for early elections, but the Knesset can block that initiative. The elections to the second (1951), fifth (1961), tenth (1981), eleventh (1984), thirteenth (1992) and fourteenth (1996) Knessets were all held before the due date by the Knesset's initiative. The elections for the sixteenth Knesset were brought forward by the initiative of the Prime Minister. The Knesset can also decide, by a special majority, to prolong its term beyond four years. This happened in the cases of the third, fifth, seventh, ninth, and eleventh Knessets, each of which served for more than four years. The elections to the eighth Knesset (1973) were delayed because of the Yom Kippur War. In either case of delayed or early elections, the newly formed Knesset is still meant to serve a full four-year term from the date of elections as determined by the law, regardless of the election date. Who Can Participate in Elections? The contest in the elections is among lists of candidates. Since the Parties Law was passed in 1992, only a party, which has been legally registered with the Party Registrar, or an alignment of two or more registered parties, which have decided to run in the elections together, can present a list of candidates and participate in the elections (for example, in the elections for the fifteenth Knesset, the list 'One Israel' was composed of three parties; Labor, Gesher and Meimad). A party can informally add to its list bodies or personalities that are not members of the party and that are not registered themselves as a party (for example, in the elections for the fifteenth Knesset, the Unified Arab List included contenders from the Democratic Arab Party, a registered party, and individuals from the Islamic Movement, a non-registered party). The following lists may not run in the elections: A list which acts directly or indirectly against the existence of the State of Israel as the state of the Jewish people or against its democratic nature; a list which incites racism; a list which supports the armed struggle of an enemy state or a terrorist organization against the State of Israel. The Distribution of Seats Among the Lists The lists that have passed the qualifying threshold receive a number of Knesset seats which is propotional to their electoral strength. This is done by the division of valid votes given to the lists which passed the qualifying threshold, by 120, in order to determine how many votes entitle a list to a single seat. In the elections to the second and seventh Knessets the excess votes (the votes received by a list which passed the qualifying threshold, but are not sufficient for a whole seat) were distributed to those lists which had the largest number of excess votes (the Hare method). In the elections to the first Knesset, and since the elections to the eighth, the excess votes are distributed to the lists with the largest number of voters per seat - a method known in the world as Hagenbach-Bischoff (de-Hondt), and is known in Israel as the Bader-Ofer method - named after MKs Yohanan Bader (Gahal) and Avraham Ofer (Alignment) who proposed its adoption. Two lists can reach an agreement regarding the distribution of excess votes between them before the elections. Who is Elected to the Knesset? The candidates of any given list are elected to the Knesset on the basis of the order in which they appear on it. If a certain party received sufficient votes for 10 seats, the first 10 candidates on its list will enter the Knesset. If a Knesset member passes away or resigns his seat in the Knesset for whatever reason, the next on the list will replace him/her.

  Jamaica, Electoral Law

  Jamaica, Electoral Law (PDF)

  Nicaragua, Electoral Law

  Nicaragua, Electoral Law (PDF)

  Mexico, Electoral Law

  Mexico, Electoral Law (PDF)

  Palestine, Electoral Law

  Palestine, Electoral Law (PDF)

  Panama, Electoral Law

  Panama, Electoral Law (PDF)

  Paraguay, Electoral Law

  Paraguay, Electoral Law (PDF)

  Peru, Electoral Law

  Peru, Electoral Law (PDF)

  Dominican Republic, Electoral Law

  Dominican Republic, Electoral Law (PDF)

  Switzerland, Constitution

  Switzerland, Constitution (PDF)

  Suriname, Electoral Law

  Suriname, Electoral Law (PDF)

  USA, Electoral Law

  USA, Electoral Law (PDF)

  Country Case Studies

  Inadequate Control of the Personal Vote in Azerbaijan

  Communities of Interest in Canada

  Constitutional and Electoral Reform in Chile

  Reform of the Spanish Electoral System

  Election of the European Parliament Members

  The Failure of high technological method in Guinea

  Reservation of Number of Seats for Minorities in India

  Code of Conduct in Cambodia

  Minorities Deprived of the Right to Vote in Latvia

  Electoral Reform in Mexico

  Reform and Electoral Process in Mozambique

  Electoral Districts in New Zealand

  Problems with Publicising the Census in Peru

  Problems with Obtaining Nationality in Russia

  Problems in the Regulations on Electoral Funding in Russia

  Electoral Campaign of Variable Duration in Russia

  Inadequate Electoral Law Reform Process in the Ukraine

  Code of Conduct in South Africa

  Las primeras formas de gobierno democrático no incluyeron a las mujeres como miembros de la ciudadana.

  La democracia tal y como la entendemos hoy en día, como un gobierno representativo elegido periódicamente por el voto de todos los ciudadanos ha sido históricamente el fruto de un proceso lento y difícil de reconocimiento de los derechos ciudadanos de unos y otros grupos de la población.

  La declaración inicial, realizada durante la Revolución francesa, de los derechos del hombre y del ciudadano es una declaración de principios acerca de la igualdad política que no incorpora a las mujeres. Las mujeres fueron excluidas de este concepto de ciudadana explicando que su naturaleza era diferente, en contra del criterio de muchas mujeres, y de algunos hombres que pidieron desde esa época los mismos derechos y las mismas libertades para ambos sexos. Condorcet, Mary Wollstonescraft, Olimpia de Gouges, Stuart Mill ya avanzado el siglo XIX están entre los pioneros defensores de extender los derechos políticos, además de a los hombres de todas las clases sociales, a todas las mujeres.

  La definición inicial de la categoría de ciudadana, a partir de la Revolución Francesa esta marcada inicialmente por las ideas del patriarcado que no se la reconoce a las mujeres. Y de todos aquellos países que fueron incorporando las ideas de libertad, de representación política, de elección y rotación en los cargos públicos como bases de sus sistemas políticos mantuvieron esa separación tajante y arbitraria durante años, no dejando a las mujeres participar como ciudadanos. El ejemplo más significativo es el de los Estados Unidos que, cuando se configuran como país al independizarse de su situación de colonia de Inglaterra, sigue las líneas marcadas por la Ilustración y la Revolución Francesa definiendo la primera democracia constitucional pero sin participación política femenina.

  Aunque siempre hubo voces aisladas que defendieron los derechos políticos de las mujeres no se organiza un movimiento con una demanda amplia de derechos políticos hasta bien avanzado el siglo XIX. En los Estados Unidos, en Inglaterra y en las colonias inglesas de Australia y Nueva Zelanda, es donde van a debatirse mas ampliamente estas demandas y donde más tempranamente se aceptaran las exigencias de participación política de las mujeres.

  Hay que señalar que la lucha por la participación política no es una lucha aislada del resto de las discriminaciones y los problemas sociales que, como colectivo, las mujeres experimentan, Las luchas por la representación política van unidas a las reivindicaciones de educación y formación profesional, de petición de oportunidades de trabajo y de atenuación de las condiciones de desigualdad social en que las leyes matrimoniales de todos estos países sitúan a las mujeres.

  Fundamentalmente la reivindicación de la educación aparece como la plataforma común de todas los movimientos a favor de las mujeres que, a lo largo del siglo XIX, se desarrollan en diferentes países y desde diferentes posiciones ideológicas. La educación se ve como el origen de todas las diferencias, 'no las dejáis educarse y luego las reprocháis su ignorancia' es el argumento feminista por excelencia, y se ve a la vez como la solución básica de todos los problemas femeninos.

  Sufragismo

  La vinculación de las mujeres con una serie de movimientos de reforma social a finales del siglo XIX, tales como la lucha por la abolición de la esclavitud y los movimientos contra las bebidas alcohólicas, es desde un principio la plataforma para la acción política y pública de una serie de mujeres que van tomando conciencia de la desigualdad de posición civil en la que están las mujeres desde el momento en que no tienen los derechos ciudadanos básicos: el derecho de propiedad y el derecho de voto.

  El movimiento sufragista, como se llamo al movimiento organizado de las mujeres por conseguir el derecho al voto, que surge inicialmente en EEUU e Inglaterra a finales del siglo XIX, se extendió a principios del siglo XX por todos los países europeos. Es en algunos países que habían sido colonias inglesas donde más tempranamente se reconoce el derecho de las mujeres a participar como ciudadanos, Nueva Zelanda en 1893 y Australia en 1902 .

  La Guerra Mundial cambia enormemente la situación social de los países que en ella participan y una de las grandes transformaciones impuestas por la contienda es el aumento extraordinario de la participación de las mujeres en los centros fabriles. El esfuerzo necesario para la guerra, unido a la ausencia de buena parte de la población masculina que debe ir al frente, hace retroceder los prejuicios acerca del trabajo y de las capacidades de las mujeres. Además la imagen y la posición social de las mujeres se refuerzan debido al enorme esfuerzo de colaboración en todos los ámbitos que desarrollan en estos años. Las necesidades de la guerra ponen de manifiesto el valor y las capacidades de las mujeres a las que se reconocen los derechos políticos, en los primeros años de paz, en la mayoría de los países contendientes.

  Una excepción en esta historia será Francia, en la que es necesario pasar por la II Guerra Mundial, y que las mujeres vuelvan a demostrar en ella su valía, para que se les otorgue el derecho al voto en 1945.

  La consecución del voto, objetivo de fundamental importancia en los sistemas de carácter democrático, no asegura a la mayoría de las mujeres de estos países la desaparición de las discriminaciones sociales y laborales ni un tratamiento político igualitario. A lo largo del siglo XX hemos visto como en la mayoría de los países democráticos se mantenían índices de educación, de participación social, de participación laboral, tasas salariales y niveles de rango profesional muy desiguales entre ambos géneros.

  La segunda ola del feminismo. El movimiento de liberación de las mujeres

  Con la renovación de las protestas femeninas organizadas a partir de los años sesenta en el Movimiento de Liberación de las Mujeres se ha pasado a hablar de la igualdad de oportunidades entre los géneros como forma de superar esa igualdad legal, ya alcanzada en muchos países, pero que puede coexistir con desigualdades muy llamativas de posición social, ingresos económicos, reconocimiento y prestigio y oportunidades reales de participación social y política.

  El final de la II Guerra Mundial es el punto de partida de una nueva época en la que, bajo el liderazgo de los Estados Unidos, se produce un aumento significativo de países democráticos y un desarrollo económico importante en todos ellos. La democracia y el desarrollo económico van de la mano en buena parte del mundo pero es justamente en estos países democráticos y más desarrollado económicamente en los que vuelve a renacer, con mayor fuerza, la protesta de un movimiento organizado en favor de los derechos, de la libertad y de la igualdad para las mujeres.

  Hay muchas razones para entender este renacer de las reivindicaciones de las mujeres, entre ellas la importancia del descubrimiento, la comercialización y la popularización de nuevos métodos anticonceptivos que van a permitir la separación entre la sexualidad y la procreación, verdadero punto de arranque de la autonomía femenina.

  Son numerosas las personalidades y los acontecimientos que anticipan la aparición del Movimiento de las mujeres pero hay que señalar especialmente dos obras que le van a dar el aparato argumentativo y teórico a tantas mujeres que pretenden cambiar su vidas y pretender tener mayores y más justas oportunidades de participación publica. En 1949 el libro de Simone de Beauvoir 'El segundo sexo' y en 1963 el libro de Betty Friedan 'La mística de la feminidad' ponen de relieve la situación de inferioridad social y política en que están las mujeres de los países democráticos más desarrollados y ofrecen a miles de mujeres una nueva visión de aquellos aspectos de la vida social en la que la religión, la filosofía, la política, la vida familiar, las tienen constreñidas.

  La expansión de los movimientos feministas es muy potente en los comienzos de los años setenta y la ONU se hace eco de estas demandas declarando 1975 como Año Internacional de la Mujer. Esta declaración de la ONU ha tenido una gran repercusión, sobre todo en aquellos países en los que las mujeres tenían menos situación y mayores niveles de discriminación. La llamada de atención internacional obligó a gran cantidad de países a revisar sus legislaciones, a aumentar los niveles de educación para las mujeres y a intentar presentar una fachada menos discriminatoria en cuanto a la situación de su población femenina.

  La Primera Conferencia Mundial de las Mujeres celebrada en México en 1975 y el Decenio de la Mujer señalado entre 1975 y 1985, que acabó con la Conferencia de Nairobi en 1985 y se continuó con la celebración de la Reunión Internacional de Mujeres en Beijing en 1995 han sido hitos históricos, apoyados internacionalmente por los gobiernos de la mayoría de los países del mundo que han forzado, de este modo, a reconocer derechos a las mujeres que antes no disfrutaban y, sobre todo, han ayudado a definir una agenda mundial de problemas y de temas pendientes en los que se involucran las mujeres tanto de países desarrollados como en vías de desarrollo y tanto de países democráticos como en países más alejados de los principios de representación y reconocimiento de libertades y derechos ciudadanos.

  Con respecto a las cuestiones concretas de participación política hay una serie de objetivos que se han definido en común para todas las mujeres, cualquiera que sea el país en el que estén. Como por ejemplo la democracia paritaria. En la mayoría de los países que tienen sistemas democráticos la presencia de las mujeres en los puestos de responsabilidad publica y de representación política es muy minoritaria. La ausencia de las mujeres de las posiciones de responsabilidad y decisión política ha comenzado a ser una preocupación central entre las asociaciones de defensa de las mujeres de los países occidentales y se han organizado todo tipo de debates acerca de las posibles medidas para contrarrestar esta situación. La mayoría de los políticos no advierten que esto sea un problema y se resiste a las medidas que se van proponiendo para paliarlo.

  Organizaciones americanas y europeas

  Las formas de combatir esta situación han sido muy diversas. En los Estados Unidos han aparecido numerosos grupos de mujeres y ONG dedicadas a conseguir fondos económicos para ayudar a las carreras política de mujeres y dedicadas también a actuar como lobby presionando a los políticos en la aceptación de estas reivindicaciones. La campaña política de 1992 que llevo a Clinton a la presidencia de los Estados Unidos fue un ejemplo importante del éxito del activismo feminista en condicionar el apoyo a determinados candidatos a cambio de que tomaran el compromiso de apoyar los objetivos políticos de los grupos de mujeres. El aumento extraordinario de mujeres en la Cámara de Representantes de los Estados Unidos y sobre todo en los Senados y las Cámaras de los diferentes Estados de la Unión es resultado de este tipo de estrategias, por una parte del apoyo dado a las candidaturas femeninas y por otra la presión sobre el electorado para llevar a los parlamentos a un mayor número de mujeres.

  En Europa las formas de trabajo político han sido diferentes. Los lobbies de mujeres se han movilizado fuertemente para obtener cambios legislativos que supusieran medidas de acción positiva a favor de la participación política de las mujeres. La más reciente actuación en este sentido se ha producido en Francia donde se ha reformado la Constitución de modo que se definiera la necesidad de alcanzar un equilibrio numérico entre los hombres y las mujeres en las posiciones de poder y representación política; y en el año 2000 se ha aprobado una nueva ley electoral según la cual los partidos están obligados a presentar listas paritarias de hombres y mujeres.

  Otros objetivos que colaboran a alcanzar la igualdad de género

  Los objetivos de las mujeres van allá de su posibilidad de proponerse como candidatos a los puestos políticos en igualdad numérica con los hombres. Las mujeres quieren compartir con los hombres las responsabilidades de todo tipo, quieren compartir tanto el poder como las obligaciones familiares. Las mujeres rechazan el antiguo acuerdo desigual mediante el que los hombres se ocupaban del trabajo remunerado y de las cuestiones publicas y las mujeres se hacían cargo del trabajo invisible y del cuidado de las familias. Las mujeres exigen un nuevo contrato social según el cual los hombres y las mujeres puedan compartir el poder, el trabajo y la familia.

  Cuadro

  Países en los que las mujeres acceden al voto antes de la Segunda Guerra Mundial

  Año en que se concede a las mujeres el derecho al voto de forma similar al que derecho que tienen los hombres en dichos países

  Países	Derecho masculino al voto en elecciones nacionales	Voto de las mujeres en igualdad con los hombres
  Alemania	1867	1918
  Argentina	1912	1947
  Australia	1901	1902
  Austria		1918
  Bélgica	1920	1948
  Brasil	1889	1932
  Canadá	1920	1918
  Colombia	1853	1957
  Checoslovaquia	1920
  Dinamarca	1920	1918 (1915)
  España	1869	1931
  EEUU	1870	1920
  Filipinas	1936	1937
  Finlandia		1906
  Francia	1848	1944
  India	1950	1950
  Italia	1919	1946
  Irlanda		1918
  Islandia		1915
  Holanda	1917	1919
  Japón	1925	1946
  Luxemburgo		1919
  México	1909	1953
  Noruega	1898	1915 (1913)
  Nueva Zelanda	1879	1893
  Polonia		1918
  Reino Unido	1918	1928
  Suecia	1909	1921
  Suiza	1848	1971
  Sudáfrica	1994	1994
  Turquía	1924	1934
  Uruguay	1932
  Venezuela	1946	1947

  Otra cuestión importante es cuando alcanzan las mujeres el derecho a ser elegidas, que difiere en cada caso aunque en la mayoría de los países se trata de fechas muy cercanas a las del derecho al voto. Otra cuestión muy diferente es la realidad de hacer posible este derecho. Así como las poblaciones femeninas se han incorporado masivamente a participar a través del sufragio cuando se les ha permitido, no ha ocurrido lo mismo en cuanto a su participación como representantes y cargos públicos.

  Y este es el tema que ha merecido más la atención recientemente y sobre el que se han tomado medidas y se han emprendido acciones por entender que la presencia real de mujeres en los órganos de poder y representación política es un aspecto fundamental del desarrollo de un sistema político democrático.

  A pesar de las campañas feministas y de los debates sobre estas cuestiones la mayoría de los países no han establecido mecanismos institucionales específicos para asegurar la presencia de mujeres en sus parlamentos o en sus órganos de gobierno. Solo recientemente estamos asistiendo al desarrollo de medidas de acción positiva y a reformas legislativas que pretenden superar esta escasa presencia de mujeres en los órganos de representación política.

  Han sido numerosas las iniciativas de grupos de mujeres, instituciones feministas, instituciones parlamentarias y gobiernos que se han emprendido con el propósito de conseguir la igualdad de derechos y responsabilidades entre hombres y mujeres, específicamente en el campo de la vida publica y política.

  En 1984 la Unión Parlamentaria en su 72 Conferencia pide a todos los grupos nacionales que incluyan mujeres en sus delegaciones y que emprendan iniciativas para alcanzar la igualdad de genero en la representación política

  En 1985, en la Conferencia de Nairobi sobre La Década de las Mujeres se adopta un documento de estrategias a seguir para alcanzar la igualdad en el que se invita a todos los países a informar cada tres años sobre las medidas adoptadas y los logros alcanzados para promover la igualdad de derechos y responsabilidades dentro hombres y mujeres, incluyendo los aspectos de participación y representación política.

  Estudios de cultura política

  Los análisis cualitativos y cuantitativos acerca de la presencia de mujeres en los órganos legislativos y de representación política democrática se han multiplicado en los últimos años. No solo se conocen el numero y los porcentajes de cada genero en las cámaras de cada país sino que también se analiza y se discute las diferencias de genero en los candidatos que se presentan a las distintas elecciones, los que resultan o no elegidos, y también dentro de estos organismos los que ocupan dentro de ellos ciertos puestos de relevancia y dirección. La relación de genero de candidatos, elegidos para el parlamento u otros puestos políticos, los seleccionados dentro del parlamento para la dirección, las mesas, la portavocia etc. siguen siendo indicios gravísimos de esa ausencia milenaria de las mujeres de las posiciones de responsabilidad y poder político.

  Acciones Positivas

  Algunos partidos políticos han adoptado, en los últimos años sistemas de cuotas o porcentajes como forma de obligarse internamente a favorecer la participación política de las mujeres. Lo han hecho como forma de Acción Positiva que ayude a superar la inercia de los comportamientos del pasado y a contrarrestar las especiales dificultades que las mujeres tienen para incorporarse a la política.

  En Bélgica se han realizado acciones positivas del tipo de campañas informativas y de concienciación acerca de la necesidad de promover mas mujeres a los cargos públicos así como campañas dentro de los partidos para conseguir mas mujeres como candidatas en las listas electorales forma de legar a tener mas mujeres elegidas.

  En Canadá han funcionado organizaciones de mujeres dentro de los partidos para movilizar a las mujeres y animarlas a presentarse como candidatos en las elecciones. Son organizaciones dedicadas a la capacitación de las mujeres en tareas necesarias para la carrera política. habilidades de presentarse y hablar en publico, recoger fondos, coordinar campañas y definir estrategias políticas.

  En Inglaterra los laboristas han incorporado a sus compromisos políticos la decisión de fomentar una mayor presencia de mujeres en el parlamento y han llevado a cabo en las dos ultimas elecciones generales unas medidas muy estrictas para favorecer la presentación de mujeres en aquellos distritos con mayores posibilidades de ganar un escaño. Como resultado de ello la situación del parlamento inglés ha cambiado enormemente alcanzando una participación femenina del, además de ser una mujer la presidenta de la Cámara de los Comunes.

  El derecho a ser elegidas y como se hizo realidad este derecho

  En muchos países transcurrió un cierto tiempo entre que las mujeres pudieron votar y cuando se incorporo alguna mujer y fue elegida como diputada.

  También hay ejemplos curiosos, como el caso de la II República española en la que hubo tres mujeres elegidas para la Asamblea Constituyente en la que se discutió si debía otorgarse o no el voto a las mujeres. Felizmente la decisión fue positiva y en España, en ese mismo año de 1931 hubo mujeres parlamentarias y mujeres con derecho a voto.

  A lo largo del siglo XX la participación de mujeres en los parlamentos nacionales ha sido muy reducida, aumentando lentamente pero sin llegar a porcentajes significativos en ningún país democrático. En 1975, el Año Internacional de la Mujer, se estima en un 12% la presencia de mujeres en las cámaras legislativas de los parlamentos nacionales, siendo un 88% la presencia masculina en ellos. Esta desproporción entre los géneros comienza a ser un tema de debate en el interior de muchos de estos países y comienzan a analizarse las posibles razones que dificultan la presencia de mujeres en los parlamentos nacionales.

  Generalmente no existen discriminaciones legales ni oposiciones directas a la participación de las mujeres como candidatos. se trata con mayor frecuencia de situaciones

  Los cambios han sido muy importantes y numerosos en estos últimos años, pero todavía el objetivo de la Democracia paritaria sigue teniendo su valor como referencia para aunar los esfuerzos de las mujeres en numerosos países del mundo en los que la participación femenina en puestos de responsabilidad, representación y poder es todavía no solo minoritaria sino muy reducida

  En 26 Enero del año 2.000 La Asamblea Nacional Francesa aprobó un proyecto de ley que impone la paridad de hombres y mujeres en las listas electorales, al 50%, bajo pena de multas o reducción de las subvenciones publicas al partido que no lo cumpla. La ley obliga a la paridad completa, alternancia de hombres y mujeres en las listas electorales, para las elecciones al Parlamento europeo, para las regionales y para el Senado y una paridad aproximada en las elecciones municipales y en las de la Asamblea Nacional, que funcional con un sistema de doble vuelta. El mecanismo de asegurar el cumplimiento de estas leyes es la retirada de las ayudas publicas que reciben los partidos a aquellos que no cumplan estas normas, en una forma proporcional a su nivel de incumplimiento. Ya en 1982 se aprobó una ley que obligaba a una cuota del 25% en las listas electorales pero el Consejo Constitucional la derogo por considerarla anticonstitucional. Por esta razón, esta vez se ha reformado la Constitución de forma previa a la medida adoptada para perseguir el equilibrio de genero en la representación política. (La reforma de la Constitución en este sentido se realizo en Junio de 1999).

  En el caso español hay un partido político, el partido socialista que ha propuesto una reforme de la Ley electoral para implantar un sistema de cuotas que garantice una presencia de hombres y de mujeres más equilibrada en todos los parlamentos.

  En las ultimas décadas del siglo algunos partidos políticos de la izquierda han puesto en marcha algunas medidas para fomentar la participación política de las mujeres y su acceso a los cargos de dirección.

  En Bélgica, por ejemplo, algunos partidos implantaron un sistema de cuotas que garantizaran un porcentaje mínimo de mujeres en los órganos de dirección y representación. Posteriormente en el territorio flamenco se elaboro un proyecto de ley por el cual se hacia ley el asegurar que un tercio de las posiciones en el Consejo Flamenco de Medios de Comunicación serían cubierto por mujeres.

  En Dinamarca el Partido Socialista ha optado, desde principios de los años ochenta por un sistema de cuotas de genero y el partido socialdemócrata se ha incorporado al mismo sistema algo más tarde.

  En Islandia el Partido Alianza para el Pueblo ha adoptado un sistema de acción positiva en favor de las mujeres estipulando que cada sexo no puede tener una representación menor del 40% ni superior al 60% en todos los niveles de la organización del partido. Como consecuencia de ello han aumentado enormemente la presencia de mujeres en sus filas, en sus órganos de dirección y, consecuentemente con la importancia de este partido, en el parlamento nacional.

  En Noruega el Partido laborista adquirió un compromiso semejante a comienzos de los años ochenta, comprometiéndose a que al menos un 40% de sus delegados, sus diputados y sus cargos públicos fueran mujeres. Como consecuencia de ello han aumentado enormemente la presencia de mujeres en la vida política y debido a la popularidad de esta medida ha sido seguido por el resto de los partidos del país.

  En España el Partido Socialista adopto en 1988 un compromiso de reservar una cuota del 25 por ciento de sus cargos de representación. Posteriormente en otros Congresos se siguió debatiendo la cuestión y la necesidad de hacer mas equilibrada la relación. Actualmente tiene un compromiso de que nunca haya mas de un 60% ni menos de un 40% de cualquier genero entre sus cargos y representantes públicos.

  Cuadro 2 - Presencia de mujeres en los parlamentos democráticos

  Países	1975-1980	1985-1990	1995-2000
  Alemania	5,6	15,4	30,9
  Argentina	7,4	3,9
  Australia
  Austria	7,6	11,4	28,8
  Bélgica	6,6	7,5	23,3
  Brasil	0,2	5,3
  Canadá	3,4	9,5	20,6
  Dinamarca	15,6	25,6	37,4
  España		6,4	22
  EEUU	3,6	5,3	13,3
  Finlandia	23	31,5	37
  Francia	1,6	6,4	10,9
  Grecia	2	6,3	6,3
  India	4,2	8,4
  Italia	3,8	12,8	11,1
  Irlanda	2,8	8,4	12
  Islandia	5	20,6	34,9
  Israel	8	8,3
  Holanda	9,3	19,3	36
  Japón	1,4	1,4	4,6
  Luxemburgo	5,1	12,5	16,7
  Noruega	15,5	34,4	36,4
  Nueva Zelanda	4,6	12,6
  Portugal	8	n.c.	18,7
  Reino Unido	4,2	6,3	18,4
  Suecia	21,4	30,9	42,7
  Suiza	7,5	11	22,5

  Datos de la Unión Interparlamentaria UIP y de la ONU

  La democracia es una invención política relativamente reciente pero es aun más reciente la participación de las mujeres en ella. Los primeros sistemas de gobierno representativo como los establecidos en Inglaterra y en Estados Unidos en el siglo XVIII no contaban con las mujeres para designar a sus gobernantes. La enorme extensión de gobiernos representativos que se produce en el siglo XIX tampoco. Las revueltas revolucionarias que atraviesan Europa entre 1830 y 1848 extiende el derecho al sufragio de buena parte de las clases sociales que no lo tenían pero no tienen todavía conciencia de la existencia política de las mujeres. Solo los países que alcanzan la independencia y la democracia a un mismo tiempo en fechas posteriores a la segunda guerra mundial ofrecen simultáneamente a todos sus habitantes el grado de ciudadanía.

  La Unión Interparlamentaria IAP refleja que la situación no ha cambiado mucho desde que en 1995 la cumbre mundial sobre la mujer celebrada en Pekín señalaba que, en el ámbito internacional, solo el 13% de los miembros de los parlamentos son mujeres. Hay algunas diferencias entre unos y otros continentes pero no muy grandes variando desde un 15,5% en Europa a un 11,2 en el Africa Subsahariana. Si se ven sin embargo diferencias mas marcadas entre unos y otros países siendo en los países del norte de Europa donde la representación femenina en el parlamento es más numerosa

  La mayor presencia de mujeres en estos países europeos se debe a la implantación de cuotas femeninas en la mayoría de los partidos políticos de esos países, es decir a la introducción de acciones positivas que obligan de forma activa a dejar lugares para las mujeres en las asambleas políticas.

  Los informes de Pekín también indicaban como la presencia de mujeres en los gobiernos no sobrepasa un 10% de sus miembros. Además se les encarga de forma mayoritaria las carteras de Asuntos Sociales, Salud, Medioambiente, Cultura, Educación o Justicia.

  La tecnología ha equilibrado el poder de ambos sexos en muchos aspectos. Los anticonceptivos han permitido a las mujeres liberarse del sometimiento a la naturaleza en el que han vivido durante siglos, permitiéndoles decidir si quieren o no reproducirse y en que medida. Por otra parte todos los avances científicos y tecnológicos aplicados a la vida cotidiana y a satisfacer las necesidades humanas básicas han liberado a las mujeres de una sujeción doméstica que las tenía destinadas de por vida a los trabajos de la reproducción. El agua corriente, la calefacción, el gas, las comidas preparadas han revolucionado la vida cotidiana en los países mas desarrollados y han sentado las bases de unas nuevas aspiraciones femeninas mas allá del matrimonio la crianza de los hijos y las tareas domésticas.

  Dice un antropólogo americano Lionel Tiger que el advierte un aumento en la confianza y el poder de las mujeres y una erosión de la confianza y el poder de los hombres. En este sentido cree que avanzamos hacia una mayor igualdad sexual 'the decline of males' Golden Books 1999. La biología puede invocarse para defender las prerrogativas masculinas tanto como para rechazarlas. El uso ideológico de las ciencias no es una novedad. Desde tiempos muy antiguos hemos visto invocar las escrituras para explicarnos como es el mundo o marcarnos como debemos verlo. Y aspecto de las relaciones de genero abundan los ejemplos en todos los sentidos. San Pablo señalándonos que la mujer obedecer al marido no se aleja mucho de Fukuyama reprochando a las mujeres actuales sus ansias de libertad y de independencia, causantes de los males actuales y de la decadencia de las sociedades occidentales.

  Tiger llega a decir que la uso de la píldora anticonceptiva ha hecho disminuir la virilidad de los hombres, rasgo que advierte en la menor producción de esperma. La cosa no pasaría de ser un chiste gracioso si no fuera por que añade proyectiles al intensivo borbandeo al que estamos sometidas las mujeres en estas sociedades industriales en las que se nos viene a responsabilizar de casi todo lo malo. 'Una de las razones posibles de la reducción del esperma masculino en los países industriales es la inhibición de los hombres ante mujeres con situación de embarazo, cuando antes estaban animados por la presencia de mujeres vivaces y atractivas'. La asimilación de la mujer que usa píldora anticonceptiva con una mujer menos activa no es correcta y más arriesgada sobre todo parece la idea de que el esperma masculino tenga algo que ver con las incitaciones de las mujeres.

  A Tiger parece molestarle que cada vez haya mas mujeres con carrera profesional, que conduzcan su propio coche que sean propietarias de su casa. A él si que parece inhibirle la libido. Todo esto tiene que ver con el cambio general de la forma de vida de las mujeres, con la menor tendencia a casarse, con el retraso de l matrimonio y con la decisión más lenta en cuanto a tener los hijos.

  A comienzos del nuevo siglo ha sido elegida presidenta de Finlandia Tarja Halonen que era hasta ahora la ministra de Asuntos exteriores. Es la primera vez que una mujer gana las elecciones presidenciales en este país.

  Aparece una paradoja en esta situación de escasa presencia de mujeres en las instituciones políticas democráticas y es que, justamente en aquellas en las que la presencia es mas reducida, es donde con mas fuerza se están poniendo medidas para cambiar la situación.

  Es el caso de Francia donde en 1999 se ha reformado la Constitución y en Enero del 2000 se ha aprobado una nueva ley electoral en el sentido de obligar a todos los partidos políticos a equilibra el numero de hombres y mujeres que se presentan en las elecciones para todo tipo de asambleas y cargos públicos. En esto

  El debate que se presenta en muchos países europeos actualmente enfrenta el dilema de si hay que tomar medidas e imponer legalmente la presencia de mujeres en la política activa o si es más adecuado dar tiempo al tiempo y esperar que, poco a poco, las mujeres accedan a puestos de dirección y liderazgo. El argumento que presentan los defensores de reformas legales es que ya llevamos muchos años promoviendo la participación de las mujeres en la política con resultados muy escasos. Es por ello que es necesario tomar medidas más potentes que contrarresten con fuerza los prejuicios y los estereotipos que dificultan el ascenso político de las mujeres.

  Parlamento Europeo

  El PE es uno de los ámbitos políticos en los que hay un mayor presencia femenina. Bien es verdad que es una asamblea consultiva con escasos poderes en cuanto a legislar y en cuanto a controlar a los gobiernos comunitarios. El Parlamento que se elige en elecciones generales realizadas separadamente en cada uno de los 15 países de la Unión Europea tiene la media mas elevada de mujeres parlamentarias del mundo.

  En esta media tienen una fuerte importancia la situación de casi paridad de genero de las representaciones de los países nórdicos Dinamarca, Finlandia y Suecia, ninguno de los cuales baja del equilibrio 40/60 en la relación entre hombres y mujeres. También ha tenido mucha importancia la enorme campaña feminista desarrollada con motivo de las ultimas elecciones del año 1999 bajo el lema 'Mas mujeres al Parlamento' coordinada simultáneamente en todos los países de la unión.

  Cuadro 3 - Parlamento Europeo. Elecciones 1999

  Porcentajes de Parlamentarios por Genero

  Países	%Hombres	%Mujeres
  Alemania	63	37
  Austria	62	38
  Bélgica	72	28
  Dinamarca	62,5	37,5
  España	66	34
  Finlandia	56	44
  Francia	60	40
  Grecia	84	16
  Holanda	64,5	35,5
  Irlanda	73	27
  Italia	88,5	11,5
  Luxemburgo	67	33

  Inadequate Control of the Personal Vote in Azerbaijan

  The report drawn up by the joint observation commission of the OSCE-UNO on the parliamentary elections and the constitutional referendum held in Azerbaijan on 12 November 1995, made reference to three types of serious irregularities: interference and pressure by government officials, great disorganisation in the counting of votes and, especially, numerous cases of multiple voting, with the approval of those in charge of the Voting Stations.

  This 'family voting', generally cast by the head of the family in the name of the rest of the members within the family, is an example of the survival of a practice far removed from the basic rule of a free and equal election: the alienation of the individual right to vote in favour of the head of the family, in accordance with a traditional archaic norm.

  According to the report, official acceptance of family voting, rife on the day of the elections, moreover strongly contrasted with the practice followed during the electoral campaign, when signatures in favour of candidates and parties were rejected when one person signed on behalf of various members of the family. The observation mission concluded that this practice cast a serious doubt on the justice of the elections; that in many senses it was not carried out according to internationally accepted standards and that the electorate was deprived of the full right to freely elect it representatives. Among the final recommendations is the development of civil education programmes, especially in rural areas, that would help to instil the idea of the practice of 'one person, one vote'.

  Communities of Interest in Canada

  One of the most interesting examples of positive discrimination is the communities of interest in Canada. Many of the provincial electoral management bodies have made relatively important corrections to the principle of equality of the vote to admit the collective rights of groups of representation identified, denominated communities of interest.

  The legal basis of this positive discrimination is found in the Law on the Revision of Constituency Boundaries. Its article 9 establishes that the division of each province will be done in such a way that its population will correspond to the population quotient as much as possible and that in general, the difference should not exceed 25% - except in extraordinary circumstances. But it permits the provinces to observe these circumstances on the grounds of the territory, to avoid that constituencies in the north are too big because of their surface area, or due to the existence of communities of interest.

  This is a generic concept, which may be based on territorial grounds (for example, to avoid the division of certain municipalities or regions for purely electoral purposes), but also on the existence of groups of humans, distinguished for ethnic, racial, religious, cultural or other reasons, considered relevant upon setting boundaries for constituencies and whose observation creates inequality in the value of the right to vote of the rest.

  'Determining boundaries

  9 (1) In determining the area to be included in and in fixing the boundaries of proposed electoral districts, the commission must be governed by the following principles:

  (a) that the principle of representation by population be achieved, recognizing the imperatives imposed by geographical and demographic realities, the legacy of our history and the need to balance the community interests of the people of British Columbia;

  (b) to achieve that principle, the commission be permitted to deviate from a common statistical Provincial electoral quota by no more than 25%, plus or minus;

  (c) the commission be permitted to exceed the 25% deviation principle where it considers that very special circumstances exist.

  (2) For the purpose of making proposals under section 3 (2), the commission must take into account the following:

  (a) geographic and demographic considerations, including the sparsity, density or rate of growth of the population of any part of British Columbia and the accessibility, size or physical configuration of any part of British Columbia;

  (b) the availability of means of communication and transportation between various parts of British Columbia.'

  Communities of Interest in Canada

  One of the most interesting examples of positive discrimination is the communities of interest in Canada. Many of the provincial electoral management bodies have made relatively important corrections to the principle of equality of the vote to admit the collective rights of groups of representation identified, denominated communities of interest.

  The legal basis of this positive discrimination is found in the Law on the Revision of Constituency Boundaries. Its article 9 establishes that the division of each province will be done in such a way that its population will correspond to the population quotient as much as possible and that in general, the difference should not exceed 25% - except in extraordinary circumstances. But it permits the provinces to observe these circumstances on the grounds of the territory, to avoid that constituencies in the north are too big because of their surface area, or due to the existence of communities of interest.

  This is a generic concept, which may be based on territorial grounds (for example, to avoid the division of certain municipalities or regions for purely electoral purposes), but also on the existence of groups of humans, distinguished for ethnic, racial, religious, cultural or other reasons, considered relevant upon setting boundaries for constituencies and whose observation creates inequality in the value of the right to vote of the rest.

  'Determining boundaries

  9 (1) In determining the area to be included in and in fixing the boundaries of proposed electoral districts, the commission must be governed by the following principles:

  (a) that the principle of representation by population be achieved, recognizing the imperatives imposed by geographical and demographic realities, the legacy of our history and the need to balance the community interests of the people of British Columbia;

  (b) to achieve that principle, the commission be permitted to deviate from a common statistical Provincial electoral quota by no more than 25%, plus or minus;

  (c) the commission be permitted to exceed the 25% deviation principle where it considers that very special circumstances exist.

  (2) For the purpose of making proposals under section 3 (2), the commission must take into account the following:

  (a) geographic and demographic considerations, including the sparsity, density or rate of growth of the population of any part of British Columbia and the accessibility, size or physical configuration of any part of British Columbia;

  (b) the availability of means of communication and transportation between various parts of British Columbia.'

  Constitutional and Electoral Reform in Chile

  The constitutional and electoral reform in Chile is a negative example of an electoral system designed by a Government with the object of ensuring control over the essential elements of political power and to benefit the forces that support it on the basis of an accurate analysis of the electoral situation of the country. To these intents and purposes were used:

  • arbitrary practices (gerrymandering) in the setting up of the constituencies;

  • the introduction of a binominal system of districts in which a proportional system is applied;

  • the inclusion of a relevant number of senators designated;

  • a majority threshold required in order to reform the Constitution, which makes any modification in practice impossible.

  The aim of all this was to guarantee the government parties a higher quota of representation and power than a more neutral electoral system would have provided them with. It must not be forgotten that this was a military dictatorship, which had emerged from a bloody coup-d'Ètat, maintained in power for sixteen years due to the support of the army and responsible for the suppression of democratic rights and freedom.

  The present electoral system in Chile was designed in the last years of the Pinochet regime and put into operation in the months following the plebiscite of October 1988, whose result - 50% 'no' and 44% 'yes' - prevented Pinochet from prolonging his presidency for a further eight years (over and above the sixteen years that he already had been in power).

  During the Pinochet regime the previous administrative division of the country had been altered. The new structure divided the country into thirteen regions, each of them with various provinces, the number of which rose to fifty. The municipalities, previously the smallest administrative units, were maintained, without their numbers undergoing noticeable changes, but the districts were done away with.

  The fact that Pinochet lost his plebiscite forced a presidential election to be held the following year (December 1989) and the two parliamentary houses had to be elected simultaneously. Shortly after the plebiscite, the Government took great pains to draw up a law to define a new electoral system that would already be in force for the said elections. Thus the number of deputies for the Lower House was reduced to a hundred and twenty, elected in sixty binominal districts with a proportional system.

  The Senate once again consisted of forty-five members, of which Pinochet had appointed eight for a period of eight years. A further thirty-six of them were elected in binominal districts, also according to a proportional system.

  The sixty constituencies for the Lower House were set up in such a way that, should the results of the 1988 plebiscite be extrapolated, then in none of the new electoral districts, 'no' would have received more than double the votes of 'yes'. The reason was the provision in a binominal constituency elected proportionally, that of those who had voted 'no' in the plebiscite, would have done so for the centre-leftwing coalition, whilst those who voted 'yes' would do so in support of the rightwing candidates. To achieve this, the constituencies did not keep to the provincial boundaries, but they did to the regional boundaries. Thus the region with the lowest population, AyÈn, with only sixty thousand inhabitants, had to elect two deputies and two senators. The metropolitan area of Santiago, with five thousand inhabitants, elected four senators and thirty-two deputies.

  The boundaries of some of the constituencies were uncertain up to the last minute. Finally, the electoral map was very similar in appearance to the typical product of a politically motivated technique of setting boundaries (gerrymandering). On principle, no municipality was divided, with the result that municipalities with less than three hundred thousand inhabitants made up one sole electoral district, whilst in certain rural areas the average population per district reached around one hundred and fifty thousand, thus leading to an over-representation of these districts in the final composition of the Parliament.

  THE BINOMINAL DISTRICTS IN CHILE

  The 'binominal' system produces some opposite effects to the majority uninominal system, in which the candidate most voted for obtains the only seat. The latter exaggerates the power of the majority party at the cost of the minority parties. In the 'binominal' system, on the contrary, should the biggest of the minority parties receive at least 33,4% of the votes in each constituency, it is guaranteed half the number of seats. In Chile, Pinochet's strategists accurately anticipated that the rightist parties would obtain second position in the presidential and legislative elections, after the centre-leftwing coalition made up of the parties that backed 'no' in the plebiscite. By designing the districts in a way that in no case the 'no' votes would have tripled the 'yes' votes, it was ensured that the electoral status quo brought about good electoral results for them. The matter was crucial, because to modify Pinochet's 1980 Constitution, a majority of two-thirds of the deputies is required. Rulings such as the fact that the President cannot cease the commanders-in-chief of the Armed Forces, form the axis to maintain control that the said forces and the rightwing parties exert on Chilean politics. A parliamentary minority would have been a disaster for all of them, but the scenario ended up being established to their advantage thanks to the two pillars pointed out: the senators having been appointed by the President assured the majority in the Senate and the electoral system having been designed the way it was, it would have been highly improbable that the centre-leftwing coalition would have reached more than two-thirds of the members of the House of Representatives.

  Parliamentary elections

  Finally, the centre-leftwing coalition ('Consensus') managed to obtain 72 of the 120 deputies, whilst the rightwing parties in favour of Pinochet obtained the other 48. The Consensus succeeded in obtaining more than double the votes of the conservatives in twelve districts, in which the latter were prejudiced by the dispersion of one part of the votes, that ended up for the populist candidates orientated towards the right. On the other hand, the communists decided to maintain their own candidates - in some cases allied with the individual candidates of the Socialist Party, which nevertheless formed part of the Consensus, depriving the coalition of perhaps a further eight or ten more deputies.

  In the Senate, the Consensus gained twenty-two seats and the conservatives sixteen, but the senators designated ensured a sufficient majority to the latter. In addition, what happens is that although the House of Representatives is renewed each four years, just like half of the Senate, the mandate of the senators designated lasts for at least eight years.

  Presidential elections

  The most important change produced by the new electoral law has perhaps been the establishment of two rounds, like in the French Presidential elections. This change has majority support, because of the election, according to the old system, that led Salvador Allende to the presidency. Allende won in 1970 with 36% of the votes and the Parliament had to decide between him and Alessandri, who almost tied with him. The Commander-in-Chief of the army was assassinated when he adhered to the Constitution regarding the army's role in this decision.

  In 1989 the winner was Patricio Aylwin, a Christian Democrat backed by the centre-leftwing coalition Consensus, who won 55% of the votes. Hern·n B¸chi, who had been the Minister of Finance with Pinochet, obtained 29% and a third candidate, a millionaire that stood as an independent, 16%.

  Source: the material of this national case is an extract of a more extensive analysis on the Chilean electoral system since 1973, published anonymously on the web page of the University of Keele [http://www.psr.keele.ac.uk/election.htm]. Unfortunately, it has not been possible to identify the author in order to be able to give him credit for such a thorough analysis.

  Reform of the Spanish Electoral System

  The transition to democracy in Spain is a fine example of an electoral system that was thought to be provisional and meant to be in force only for the first democratic elections, but its core elements ended up becoming consolidated.

  Decree-Law 20/77 of 18 March establishes a regulation that was in principle only intended for the first democratic elections. However, it marked the Spanish electoral system in a decisive manner, due to a combination of the following factors:

  • In the first place, because many of its elements were constitutionalised. In the Spanish Constitution of 1978, which had been elaborated by the Spanish Parliament that emerged from these first elections, the number of deputies (between 300 and 400), the provincial electoral constituency and the choice of proportional representation criteria are stipulated in the regulations for Congress; and for the Senate, the election of four senators per province.

  • In the second place, because its temporary application was extended. First for the 1979 elections, by transitional disposition 8, point 3, of the Constitution; then for the 1982 elections, due to the incapacity of the government of the UCD to achieve sufficient parliamentary consensus to approve an organic electoral law.
  • Finally because the electoral system that had been established functioned in accordance with the objectives pursued: an acceptable degree of representativeness without excessive fragmentation of the Houses; stable governments, even with an absolute majority; the alternation of power and, as an overall consequence, a high degree of legitimacy.

  Consequently, Organic Law 5/1985, of 19 June took up many elements of the 1977 decree - sometimes literally: the total number of deputies, the initial minimum for each constituency, the D¥Hont method as a concrete proportional formula, the closed, blocked lists for Congress and the essential elements for the election of senators. The reforms subsequent to the LOREG (by organic laws 8/91; 6/92; 13/94; 3/95) did not modify the electoral system. And the electoral laws of the seventeen Autonomous Regions have also taken up the whole of the elements of the electoral system, apart from some specific points as far as constituencies are concerned. The only partial exception has been the choice of a national constituency in the elections for the European Parliament (included into the LOREG by Organic Law 1/87).

  Election of the European Parliament Members

  As a result of the supranational character of the European Union, the election of the European Members of Parliament have some peculiarities compared to elections with the components of national parliaments. In accordance with article 137 of the Treaty of the European Union, the European Parliament is made up of representatives of the peoples of the States joined together in the Community (art. 137), elected by direct universal suffrage (art. 138).

  The elections are held in accordance with Community regulations, although they are received and developed by the national legislation for each election. But apart from the peculiarities of each election regarding, e.g., the day on which they take place in each of the member states, the most relevant peculiarity of these elections is the recognition within the member states, of the right to active and passive suffrage of nationals from the other states.

  As envisaged in Section VI of the Organic Law of the Spanish General Electoral System, which regulates the special dispositions for the European Parliament, persons residing in Spain are entitled to active suffrage (art. 210) and passive suffrage (art. 210), even without having acquired Spanish nationality if:

  a) They are citizens of the European Union;

  b) They meet the requirements to be a voter or to be eligible, in each case as demanded by Spanish law and the law of the state where they are nationals.

  c) They have chosen to assert their right to active suffrage in Spain, in the case of asserting this right, or to formally declare that they will not stand simultaneously as a candidate for the parliamentary elections in any other member state.

  The Treaty of the European Union establishes the number of deputies each member state is entitled to elect, but the national laws regulate rules on incompatibilities and ineligibility, the electoral system, regarding the variations on constituencies and the criterion on the attribution of powers that exist within the Union as well as the peculiarities of the electoral procedure with respect to the national election systems.

  The Failure of high technological method in Guinea

  The use of advanced - and very costly - technological means do not guarantee honest elections or accurate counts in itself. This will obviously depend on other factors: the intentions of those who run the process, their control over its progress and some possibilities of control and appeal on behalf of the opposition and neutral observers, should there be any. But technology does not even guarantee greater effectiveness in the execution of material tasks. On the contrary, the employment of means that are too advanced in relation to the training of the users or the standards of the rest of the systems used, may produce more malfunctions than advantages.

  In her article on the use of high technology elements in the elections held in Equatorial Guinea, Pamela Reeves sets out an example regarding the utility of the said means to improve the progress of the electoral process, or even to help it run smoothly.

  In the local elections in September 1995, the opposition had reported a massive fraud case in the governmental count, which took ten days before making the results known and victory was proclaimed for the governmental candidates, whilst the opposition had its own unofficial count.

  As a token of its effort of transparency and fairness in the next elections, the Government spent 750,000 Dollars on the acquisition of fax equipment with a satellite connection, handled by technical experts, from a reputed British company, for the head offices of each of the eighteen electoral districts. The mission of these experts was to transmit the official voting records to Malabo, with the results of each voting station. As an additional guarantee, the presidents of the voting stations had to take the original voting records and other documentation for final verification of the results. In Malabo there were five fax machines to receive the results and a photocopier to make two copies of each record received: one for the Electoral Management Body and the other for the international observers. In theory, the results of the districts should have been sent by fax and the satellite connection to a communications centre based in Canada. From there they were to be remitted to a public telephone centre in the continental territory of Guinea; from there they would be sent via a microwave system situated on the island of Bioko to Malabo and finally, they would reach the five portable fax machines at the headquarters by means of a local telephone network.

  However, on the day of the elections, the Canadian telephone system had a failure that lowered the chances of receiving calls to thirty per cent, slowing down the process considerably. To lighten the information burden on the five fax machines, it was decided that, where possible, the voting records should be hand delivered to the headquarters from the voting stations. Ballot boxes were lost and the publication of the results was delayed by five days. By the time the fax machines were withdrawn, on the fifth day, around seventy five per cent of the votes had been scrutinised. The Electoral Management Body decided to suspend the publication of provisional results until receiving particulars from those districts where the failure of the faxes had occurred. The final results of the voting were not made known until fifteen days afterwards. With advanced technology, they took five days longer than in the 1995 elections.

  Reservation of Number of Seats for Minorities in India

  The Constitution of the Indian Union establishes the reservation of the number of seats for certain castes and tribes, apart from a special clause for the Anglo-Indian community. The constitutional text envisages the following, under the title 'SPECIAL PROVISIONS RELATING TO CERTAIN CLASSES':

  'SPECIAL PROVISIONS RELATING TO CERTAIN CLASSES 330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. - (1) Seats shall be reserved in the House of the People for - (a) the Scheduled Castes; (b) the Scheduled Tribes in the autonomous districts of Assam.

  - (2) The number of seats reserved in any State for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State in the House of the Peoples, in respect of which seats are so reserved, bears to the total population of the State.

  331. Representation of the Anglo-Indian community in the House of the People. - Notwithstanding anything in article 81, the President may, if he is of opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People.'

  This is a mechanism of positive discrimination, insofar as it protects the election of candidates of certain groups to ensure their representation. We have already made reference to the legal problems these mechanisms pose: insofar as they give priority to particular candidates for belonging to a group, they apply a criterion opposed to 'one person, one vote', to the equal value of each vote. Therefore, even though the need for these can be justified in contexts where representation helps overcome serious cases of inequality, the effects on the groups that do not receive such special treatment, should be assessed. Thus it is reasonable for provision to be made for the number of positions reserved to be in some proportion to the population of the constituency.

  Code of Conduct in Cambodia

  The code of conduct in Cambodia, published by the Inter-parliamentary Union in its report on the Cambodian elections in 1993, has a peculiar nature, as it was incorporated into the Electoral Law itself by the Cambodian Parliament.

  At the time it was adopted by the parties competing in the elections, its contents were typical of a code elaborated in the framework of an electoral process with international assistance: a declaration on the obligation of the parties and all the subjects that took part in the process one way or another, to keep to its rules and to the electoral regulations as a whole; a declaration on the right to free and fair elections and the obligation to respect the freedom of the rest of the parties and a set of elaborated rules of conduct: some that forbid intimidating behaviour and the use of weapons, establishing rules to avoid any verbal incident, interference or restriction of liberty regarding public events or protest marches by any party; others establishing compulsory communications systems, co-operation and mediation among the parties and with the international observers, to avoid, settle or resolve incidents or conflicts of any kind among the contenders.

  However, before it was incorporated into the electoral law, there was no way that this code could have been considered as a legal regulation, as it lacked essential elements for such a description: it was a non-public agreement among subjects and was devoid of the power to dictate or enact laws. Likewise, it lacked the legal consequence in case of non-compliance therewith, imposed by the legal system itself.

  Its incorporation into the electoral law converts the rules of the code into legally established obligations, backed by the penal consequences envisaged in the Cambodian legal system, should it not be observed. This is an example of legislative crystallisation, by which a set of rules initially agreed upon among private subjects (although within the framework of an electoral process of evident public relevance), whose compulsory nature is derived from the commitment by the subjects that entered into the agreement, is converted into legal rules whose compulsory nature is derived from this feature.

  Minorities Deprived of the Right to Vote in Latvia

  The case of Latvia is an extreme example of the very serious problems caused by the restrictive criterion for the acquisition of nationality in the majority of the independent states that formed part of the former Soviet Union. Lacking official data, we expose the data of the European Commission decision in response to an application to join by Latvia, published in June 1997.

  The minorities in Latvia represent around 44% of the population of the country. Of these almost 30% are Russians and significant groups of nationals from other independent states of the former USSR, with more than 4% Belorussians and almost the same percentage of Ukrainians. 28% of the total population of the country do not possess Latvian citizenship and the majority of these people do not have any nationality.

  The law of August 1994, which regulates the acquisition of nationality, establishes strict age requirements (nationality can be applied for only at certain times, depending on the age) and an examination on knowledge of the language, history, the institutions and even the Latvian anthem. From the time of the opening up of the process of nationalisation to the publication of the report, hardly five thousand people possessed it, whilst some six hundred and eighty five thousand do not.

  In an effort to minimise the negative judgement of the consequences of this very restrictive law, some ostensible advantages of those who do not have Latvian citizenship, are alleged: they are not obliged to do military service and it is easier for them to travel around the former USSR states on the passport of the latter. But among the discriminations that they suffer for this reason (restrictions on the acquisition of certain properties or the holding of public positions, etc.), is the deprivation of the rights to active and passive suffrage.

  Apart from the consequences of this situation in the face of Latvia's access to the European Union (obviously difficult, insofar as a third of the persons being stateless, is a negative element as far as institutional stability and the guarantee of basic rights and freedom are concerned), the shortfalls of a system that restricts access to nationality to such an extent and therefore, to political participation by means of voting, are evident.

  Electoral Reform in Mexico

  One national case that deserves special attention is the reform process of the Mexican political and electoral systems. Setting out from an electoral system whose organisational and material deficiencies contributed to undermining the democratic credibility of the whole of the political system, a highly ambitious legislative and organisational reform was put into operation. The process rests on two main aspects: on the one hand, legislative reform, directed at increasing the number of electoral positions and especially, to guarantee freedom in standing for the elections and transparency; on the other, a complete reform of the Federal Electoral Institute, the organ in charge of administering and controlling the electoral process, which contributes reasonable guarantees of honesty in the material development of the process and promotes changes to the regulations.

  1. The 1996 political and electoral reform

  The 1996 legislative reforms as a whole has affected the electoral system in many of its relevant elements:

  a) In the composition of the Chamber of Deputies

  • The maximum limit of representation of the main electoral power is set at 300 deputies elected according to the two principles (majority and proportional), e.g., 60% of the 500 seats.

  • A maximum level of over-representation is set at eight points in the relation votes-seats for all political parties, as a complement to a maximum limit set for representation of the main electoral power, to try to reinforce proportionality.

  • An increase of the voting threshold required for a political party to take part in the assignation of seats for proportional representation, from 1.5 to 2%.

  b) The Senate

  • The principle of proportional representation is incorporated to elect 32 of its 128 members. Now three senators are elected equally in the 32 federal entities: two according to the principle of relative majority and the third one assigned to the main minority; the remaining 32 will be elected according to the principle of proportional representation by means of the system of lists in one sole national plurinominal constituency.

  • The voting threshold for the assignation of senator seats of proportional representation is also set at 2% of the votes cast at national level.

  c) Political parties and groupings

  • One sole procedure is established for a political organisation to obtain registration as a national political party. A second form that existed up to then is therefore done away with, which consisted of conditioned registration so that a political organisation could obtain recognition to be able to take part in the federal elections.

  • The requisites for registration as a political party are made more flexible: instead of the minimum of seventy-five thousand members at national level that were required before, three thousand members in at least 10 of the 32 federal entities are now required, or 300 in at least 100 of the 300 uninominal electoral districts; the total must be lower than 0.13% of the Voters Register utilised in the immediate ordinary federal elections before the application is made.

  • The percentage required for a national political party to remain registered: a minimum of 2%.

  • The concept of national political groupings, able to take part in federal electoral processes, is recognised, by subscribing to and registering an agreement of participation with a political party before the electoral authority. They have to have at least seven thousand members throughout the country, a management body at national level and offices in at least 10 federal entities. They dispose of a special tax system and public funding.

  d) Reforms to improve conditions of fairness in the political-electoral contest.

  • Guarantees of greater fairness in the free access to radio and television during electoral periods are established, irrespective of the 15 minutes per month they dispose of permanently. During electoral periods 30% will be distributed in an egalitarian manner and 70% in a proportional way to the electoral powers. Additional time consists of not only up to 250 hours of radio and 200 hours of television time in the electoral process for the election of the President (which is reduced by half in strictly legislative elections), but also the monthly acquisition of up to 10 thousand promotional slots on behalf of the Federal Electoral Institute on the radio and 400 on television, of 20 seconds duration each.

  • The right to clarify information provided by the media during the electoral campaigns is recognised when it is considered that they have distorted facts or situations referring to activities or personal characters.

  • It is established that public funding must take preference over other types permitted and regulated by law.

  • Public funding takes on three forms: the maintenance of permanent ordinary activities, campaign expenses and specific activities as entities of public interest.

  • Anonymous contributions are prohibited and new limits are established for funding by supporters.

  • Increased powers of control by the Commission on Taxation of the Resources of Political Parties and Groupings. Among such powers audits of the finances of the political parties and groupings and verification visits are included, with the purpose of corroborating the fulfilment of their obligations and the veracity of their reports.

  • The rules are modified so that the FEI can set the limits for campaign expenses.

  e) Legal possibilities for the formation of electoral coalitions are broadened.

  f) Regarding electoral Justice matters:

  • The action of unconstitutionality on electoral matters in terms of the electoral laws known to the public at federal and local level is recognised, acknowledging the political parties as the only subjects that have the power to file them before the Supreme Court of Justice of the Nation.

  • Federal and local electoral laws have to be promulgated and published at least 90 days before start of the electoral process to which they will be applied. No basic legal modifications may be made during the electoral process.

  • Appeal mechanisms of proceedings and resolutions of electoral authorities are increased, to guarantee the protection of electoral rights and those of a public associated nature.

  • A new constitutional revision system of the proceedings and resolutions of the electoral authorities is established, destined towards organisation and development, as well as to resolve controversies that come up within them.

  • The Electoral Court is incorporated into the Judiciary of the Federation, as an organ specialised in the matter with maximum jurisdictional authority, with the exception of actions of unconstitutionality.

  g) The Constitutions and laws of the states must incorporate basic principles and guarantees equivalent to those established on electoral matters at federal level.

  h) The political-electoral system of the Federal District is modified:

  • The Representatives' Assembly is converted into the Legislative Assembly and assumes new powers.
  • Direct election of the Head of the Government of the Federal District is established for a period of six years. In addition, his powers are significantly increased.

  2. The reform of the Federal Electoral Institute (FEI)

  As it would be practically impossible to handle the implementation of these reforms without a parallel modification of the electoral administration, the Federal Electoral Institute has also been substantially reorganised.

  The Federal Electoral Institute is the autonomous public organisation, responsible for the organisation of federal elections, i.e., those of the President of the United Mexican States and of the deputies and senators. The FEI went into operation on 11 October 1990, as a result of the constitutional reforms of 1989 and the new Federal Code of Institutions and Electoral Procedures ('COFIPE') of August 1990. Since then, three other relevant reform processes have taken place, in 1993, 1994, and 1996. The 1993 reform increased the powers of the FEI in the naming of candidates and to be able to set limits for campaign expenses. The 1994 reform increased the importance of the citizen advisors within the FEI itself, conferring upon them the majority of the votes and increased the powers of the management organs at state and district level. The 1996 reform made an effort to reinforce the autonomy of the Federal Electoral Institute by splitting it completely from the Executive Power and reserving the vote within the management organs exclusively to the citizen advisors. The designation of its members was left up to the Legislative Power, demanding reinforced agreement that would ensure sufficient consensus. In turn, the structure and the permanent means of the FEI were considerably reinforced. The FEI also took charge of the permanent control of matters related to recognition, funding, access to the media, etc., of the political parties.

  On the other hand, the Electoral Court is incorporated into the Judiciary, before which it is possible to impugn the proceedings and resolutions of the electoral authorities that may be determining for the development or the final result of the electoral processes. The FEI has a body of integrated officials in a Professional Electoral Service. And, different from the previous electoral bodies that only worked during the processes, it is constituted as an institution of a permanent nature. It is organised under a decentralised scheme, through organs based in each of the 32 federal entities, as well as in each of the 300 uninominal electoral districts into which the Mexican territory is divided for electoral purposes.

  The Federal Electoral Institute carries out the set of tasks related to the preparation, organisation, conduct and observation of the federal elections, among others:

  • Permanent handling, updating and correcting of the register and the voters lists.
  • Attention to the rights and prerogatives of the political parties and groupings.
  • Design and printing of electoral material.
  • Preparation of Election Day.
  • Training of the citizens entrusted with receiving the ballots and doing the counting at each polling station.
  • Calculating of the results, declaring and naming of deputies and senators in the elections.
  • Calculating the results of the President of the United States of Mexico.
  • Regulation of electoral observation, surveys and opinion polls for electoral purposes.
  • Drawing up and execution of civil education programmes.

  The aims that should inspire the functioning and organisation of the FEI are of outstanding value. Its guiding rules are not limited to enunciating effective administrative activities, but include the aims to 'contribute to the development of democratic life, preserve the strengthening of the systems of political parties, ensure the citizens of their political electoral rights and guarantee that elections are held periodically and peacefully'.

  Reform and Electoral Process in Mozambique

  International aid during the 1993 electoral process in Mozambique was outstanding, especially because of the effort that was put into it technically, financially, in terms of mediation and the boost it received throughout the entire process. After a civil war of seventeen years between the Government and Renamo, the elaboration of an electoral law and the holding of free and fair elections constituted an indispensable basis from which institutional and technical conditions could be created to develop the Peace Agreements. But the electoral process did not only have to work towards electoral results that would be recognised as legitimate, but an electoral system with a new scheme that would have continuity. This whole process would have been impossible without the especially effective contribution of the international community and the United Nations, especially through the peace mission ONUMOZ.

  The starting point was particularly complex: conditions in which there were logistic shortfalls, deep mistrust among those that up to then had been contenders and an extremely weak administration. Not only were there enormous administrative deficiencies, but also a lack of information on the actual situation in several parts of the country. The electoral process therefore became a continuous effort to develop the electoral system and logistics, entrusted to an independent Electoral Management Body, with executive powers and strong international technical and financial aid. Thus, simultaneously to being confronted with material, technical and political problems at every turn, they also had to overcome the reciprocal mistrust among former fighting groups that signed the Peace Agreement - and between them and the rest of the organisations in the country, by means of acting on the grounds of pragmatic criteria.

  Among these difficulties, establishing conditions of security (individual and group) and confidence, indispensable throughout the entire process, were particularly complex. Together with this there were, in addition, the rest of the components of the agreements: the demobilisation of troops, the setting up of one sole national army, the withdrawal of mines, the return of the refugees and the integration into the general Administration of the territories controlled by Renamo.

  The conception of the peace process and its development likewise required an enormous logistic effort and financial and material contribution at the hands of the international community. However, many of the technical and organisational solutions (from the preparatory phase to the elaboration of the register and the voting) were conditioned by the constant concern over credibility and consensus, which gave rise to numerous problems regarding meeting the deadlines and the final costs. Initially planned for October 1993, the elections finally took place a year later, between 27 and 29 October 1994, due to a delay concerning the elaboration of the Electoral Law, the constitution of the Electoral Management Body and the development of the preparatory phases of the elections. It was inevitable, given the conditions at the outset.

  Throughout this period, efforts were constant to maintain the rule of consensus in the work of the National Electoral Management Body and the forming of the electoral organisations; in the employment of security materials for registration and voting and in the strict control of their elaboration, transportation, storage and distribution and in the use of helicopters to be able to reach inland areas that were difficult to access. This work was seriously encumbered by the excessive rigidity of the Electoral Law, which regulated up to the last electoral operation, without leaving any room for adapting it to the specific process.

  All this commitment, technical, logistic and financial effort did not prevent some accusations of fraud - usually unproven - on behalf of Renamo and other parties. But it was vital to create the material conditions for the electoral process, guarantee its stability and the acceptation of its results by the majority of the population and the international community. In contrast, the Electoral Administration that emerged turned out to be too sluggish. Its decision-making process turned out to be slow and too complex; its effectiveness and efficiency limited, in the executive organs as well as in the chain of command and its astronomic costs made it dependent on the community of donors. But these problems are necessarily subordinate to the positive results of the process and their solution pertains to a second phase, once a stable electoral system has been established.

  Source: Report by ONUMOZ on the 1993/1994 electoral process.

  Electoral Districts in New Zealand

  The 1993 Electoral Law established the procedure, being applied by the Electoral Management Body in charge of setting the boundaries of the constituencies in New Zealand. It is an interesting case because of the way in which they are dealing with the specific ethnical and cultural nature of one part of the population (the Maoris), whilst at the same time making an effort to guarantee a balanced, fair distribution of the constituencies, applying numerical, cultural, geographic and historic criteria.

  The essential regulations of this process can be found in articles 35, 38, 45, 46 and 269 of the Electoral Law. As general criteria, a set number of common or 'non-Maori' districts are allocated to the Southern Island. Then they calculate the number of common districts of the Northern Island and the Maoris in such a way that they end up with a similar number of voters as the Southern Island. The approximate relation in a distribution of 67 seats, is 16 common districts for the Southern Island and 45 for the Northern Island. The number of Maori districts may vary, taking into account the evolution of the population and the Maori voters register. The present number is six, based on the 1996 register.

  The law sets some very strict limits to the possible variations in population between districts: the difference may not exceed ±5%. In the first proposal of the Electoral Management Body, the average population of the districts was as follows:

  • Common districts of the Northern Island: 53.690 (±2.684)
  • Common districts of the Southern Island: 54.105 (±2.705)
  • Maori Districts: 56.166 (±2.808)

  Within the population limits pointed out, the Electoral Management Body must take several criteria into account in a balanced manner when it comes to setting boundaries for the districts: the existing constituencies, the communities of interest, means of transportation, geographic elements and the demographic provisions that may help foresee variations in the populations during the time that these new constituencies will be in effect.

  For the Maori districts, the previous Maori constituencies, the existence of communities of interest between the Maori population and the Maori tribe members, communications facilities, geographic traits and the demographic projections of the Maori electoral population of the said district during the time that they are in effect, have to be taken into account. These are more extensive districts than the average common districts, due to the lower population density in these territories.

  The Electoral Management Body may apply the limit of 5% so that initially, districts will be constituted of a bigger or a smaller population, should the demographic forecasts show tendencies of growth or sharp drops in some of them. Thus it will be able to anticipate the demographic forecasts and at the same time, ensure the fairness and stability of the constituencies. The demographic forecasts used refer to the years 1999, in which general elections are likely to take place and 2002, which is the theoretic time limit of the boundaries presently in force.

  SOURCE: INFORMATION FROM THE NEW ZEALAND ELECTORAL AUTHORITY (ELECTIONS NZ WEB PAGE)-

  Problems with Publicising the Census in Peru

  The report written for the IFES by Rodrigo Villarreal¹ on the 1995 Peruvian general elections depicts three interesting questions:

  1. The Peruvian electoral law establishes that there must be a maximum of two hundred voters per voting station, so in the last general elections, the number of 70,456 voting stations meant an average of 176 voters each. This figure is too low, so a moderate rise in the number of possible voters per polling station could bring about a considerable saving in resources which are necessarily scarce.

  2. Regarding the voters' register, the law does not establish any deadline for the publication of electoral lists of citizens registered to assert their right to vote. Neither the period of time they should be displayed once published. This is an anomaly regarding the residents within the national territory as well as those registered at embassies and consulates. The deficiency of preclusive deadlines makes any correction of the voters' register tremendously difficult, which evidently hampers elections from being held in a regular way. In fact, the IFES observers had informed that the electoral lists were only displayed on the day of the elections, which contravenes one of the guarantees of a free and fair electoral process: publicising the register. Prior to that day, it had been practically unknown to the voters and the parties, despite the complaints of the opposition parties and the international observers because of the lack of transparency.

  3. In the third place, the legal obligation to place the list of voters at the disposal of the Armed Forces on the day of the elections is maintained, but it is not specified why. In any case, it is evident that there is no clear legal determination limiting the possibility of the competent civil electoral authorities from making any modification to or exclusion from the voters list.

  Problems with Obtaining Nationality in Russia

  The Russian Federation has been an exception among the states that emerged from the former Soviet Union when it comes to granting Russian nationality. The most common criterion among the said states has been very restrictive regarding the granting of nationality, which has led to a great number of stateless persons (vid. Minorities Deprived of the Right to Vote in Latvia). On the contrary, the Federation has established a broad criterion that prevents the numerous negative consequences of being stateless, among others, not recognising the right to active and passive suffrage.

  However, various international organisations have issued warnings regarding an example that could, at times, distort this generous legal criterion in practice: nationals of the former USSR have been forced to emigrate to Russia from their places of residence in any other of the states that emerged from it.

  These are complex situations that do not always have an easy solution in Russian regulations. Specifically, in the Law on Refugees; the Law on Forced Emigrants; the Law that regulates the right of the Russian citizens to freedom of movement and the right to choose their place of temporary or permanent residence within the Russian Federation (promulgated on 25 June 1993) and even in the Law on Nationality of the Federation itself, promulgated on 28 November 1991 and reformed on 17 June 1993. In principle, the procedure to obtain Russian nationality is relatively simple for any citizen of the former USSR: a registration system is sufficient. However, article 19 of the Law on Nationality demands that applicants provide proof of regular residence in Russia by means of prior registration in the place where they hand in their application for nationality.

  The Ministry of the Interior often interprets the requirement of regularity as the need for a certificate of permanent residence prior to the application, which makes it difficult to acquire nationality. The consequence is that these people are excluded from the aid for forced emigrants, apart from their deprivation of all the rights nationality entitles them to, among these, the right to vote. This is definitely an example of how the difficulty in certifying a requisite, based on a restrictive administrative interpretation, can hamper the recognition of a right with a chain of negative consequences for the person concerned.

  Problems in the Regulations on Electoral Funding in Russia

  The Russian regulations provide a clear example of how the provision of completely unrealistic amounts under items pertaining to donations and expenses that the candidatures are entitled to, not only do not contribute to a more honest electoral process, but on the contrary, are an open invitation for no political group to observe the legal provisions. Consequently they systematically resort to the forgery of electoral income and expenses and illegal sources of funding.

  The problem clearly arises as a result of deficient legal regulations. For example, during the 1996 presidential elections and in accordance with article 45 of the Law for the election of the President, donations were limited to a maximum of US$577 per person and the maximum expenses a candidature was entitled to was US$2,887,500, i.e., little over one cent per inhabitant in a country of more than 17 million square miles. The same problems, giving rise to similar figures, just as inadequate, occur regarding the elections to the Parliament or Duna.

  Evidently, such types of regulations should be avoided at all costs. In this regard Russia is a perfect example of how its highly detailed regulations on electoral income and expenses and the control are, in reality, totally beyond limits and if they intend regulating this matter effectively, they would have to set out from a realistic scheme of expenses, which would not incite the political parties to necessarily have to look towards illegal means to fund their electoral campaigns.

  For further details on the problem in Russia, please see the excellent report by Barnes, Catherine; Dahl, Robert; Edgeworth, Linda; McDonald, Leane: 'The Election of President of the Russia Federation. A Technical Analysis with Recommendations for Legal and Procedural Reform'. IFES, Washington 1996.

  Electoral Campaign of Variable Duration in Russia

  Article 34 of the Law on Presidential Elections in Russia establishes a complicated mechanism for the naming of candidates, which includes the provision that each one of them has to present a million signatures of citizens backing their candidacy. This means that the formal naming takes place step by step, as they fulfil this requisite.

  This leads to electoral campaigns of variable duration for each of the candidacies, as even though the final date is officially set for all of them, their initiation will vary depending on the date they manage to meet the legal requisites.

  This situation creates an extraordinary inequality among the candidates, above all in favour of those who already hold the position for which the election is being held. This is so, not only because they are probably in a position to fulfil the legal requirements to be named sooner and will constantly have the benefit of a longer campaign, but also inevitably because of the latter, they will be considered news by the media and the very collecting of signatures, will be dealt with as such.

  Electoral laws should therefore avoid this type of campaign of variable duration for each candidate; they should establish exactly how long the electoral campaign should be and this, usually coinciding with the periods during which the different candidates enjoy particular public advantages, must be identical for all contenders.

  Inadequate Electoral Law Reform Process in the Ukraine

  The electoral law promulgated on the eighteenth of November 1993 in the Ukraine, maintained some essential elements of the old electoral law of the Soviet period. Among others:

  • those that regulated the standing and registration of candidates;

  • should the percentage of voters have been below fifty per cent of the voters' register, it is obligatory to repeat the elections, in addition, necessarily with new candidates;

  • the winning candidate is required to obtain twenty-five per cent plus one of the votes cast, as should this not be fulfilled, a second round has to take place in two weeks' time;

  • the possibility of a 'negative' vote, by scratching a candidate from the list.

  In the elections held on 27 March 1994, the application of these rules, relics of a non-democratic system, compelled them to hold four electoral rounds, but even so, it was not possible to cover part of the 450 seats in Parliament.

  The rules regarding fifty per cent of the register and twenty-five per cent of the votes for the candidate had been maintained by exception in the Ukraine, in spite of the opposite example of the majority of the electoral laws in the countries that emerged form the former USSR, being new. It is within the peculiarities of the Soviet electoral system that the logic behind this should be sought: contrary to the liberal democratic systems, the elections were not free and fair among competitors, but an almost plebiscite-like ratification of the decisions adopted in another seat and moulded into the proposal of one sole candidacy, officially supported by the organs of the state party. Only in these conditions, where there is no real competition among parties or candidacies and the vote is compulsory, can rules that do not take into account abstentions or the possible dispersion of the vote and establish such high voting thresholds, be explained. The same applies to the obligation to repeat the elections should it be the other way round: it is evident that the Soviet system did not suffer the discrediting consequences that the need for elections to be repeated in a democratic system, would have (although now not three times, but only once).

  The subsequent report by the IFES advised all sorts of measures already incorporated into the majority of the electoral systems of the ex-USSR countries that have become independent: to eliminate the rules of fifty and twenty-five per cent; to modify the regulations on the proposal of candidacies (that distinguished among candidates depending on the group that proposed them); to abolish the possibility of casting negative votes; to introduce a more effective system to resolve disputes, entrusted to the electoral management bodies and ordinary jurisdiction and establish a reinforced Central Electoral Management Body, which is more centralised and has greater financial autonomy.

  Code of Conduct in South Africa

  The South African electoral code of conduct contains a number of binding elements that are essentially legal, which almost has the features of a legal regulation, to the point that it can be considered more as a law than a mere agreement to regulate the behaviour of the electoral contenders:

  1. In principle, the compulsory nature of the code is of the same scope typical of codes of conduct. Merely making application for registration or the proposal of a candidacy automatically compels the party, its candidates and its representatives to observe the code rules. Any infringement by any of these officials, will be the responsibility of the party they belong to.

  2. With the object of ensuring that the code is applied, electoral courts and electoral appeal courts are appointed in each province.

  3. Sanctions are established: fines of up to one hundred thousand Rand for any infringement of the code.

  4. Likewise, procedures for the processing of complaints for any breach, are regulated by the code. For this purpose an examiner is appointed, a preliminary reconciliation effort is required to permit the solving of disputes, without it being necessary to resort to the electoral courts.

  5. The code furthermore determines the principles that the courts should apply when resolving disputes: efficiency, fairness and promptness, without resorting to long drawn out or complex, highly technical legal procedures. To favour these principles, each court is given the greatest autonomy to govern its work and has to make an effort to be accessible to participants who do not possess legal training.

  These dispositions as a whole undoubtedly imply a legal nature: the regulations are compulsory for all; there are organs in charge of guaranteeing their efficiency; provision has been made for defaulters and principles and procedures are established to govern the actions of such courts. But moreover, other formal arguments to support its legal nature, stem from the literal vein of the code. For example, the code establishes that: 'committing any infringement established by these rules or any other Law' and 'to commit any other electoral violation or not comply with any other provision of the electoral rules', are infringements.

  Legislative Framework End Notes

  Problems with Publicising the Census in Peru

  1. VILLARREAL, R.: Perú, April 1995 Election Assessment, Country Report, Washington, IFES, 1996.

  ACE Website Version 1.0
  > <a href='..../english/pi/piz.htm'>Copyright 1998-2003
  > IFES, UN-DESA, IIDEA<br> Wed Dec 10 09:46:52 2003 UTC

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  Acciones de Documento