In this section we examine the broad legal framework under which electoral laws function.
The first issue is whether election laws are part of the constitution or not. The argument for having them in the constitution is that they are given higher status, as symbols of the contract that ties members of the community towards each other and between the people and their representatives. The argument for not putting them into the constitution is to obtain greater flexibility, as it is easier to amend simple laws than the constitution itself. It turns out that most of the time, that is, in 60% of the countries about which information is available elections laws, or at least some of them, are incorporated into the constitution.
There are substantial regional variations, as they are part of the constitution in 80% of the countries in Europe and the Pacific, but only in a minority of the cases in the Americas and the Middle East. The propensity to include electoral laws into the constitution is not related to the degree of democracy or level of development. We do observe, however, that former French and Spanish colonies are less prone to incorporate election laws into the constitution.
The second question is whether the national electoral law covers only national elections (and referenda) or applies to regional or local elections as well. In two thirds of the countries (65%), the electoral law has a broader reach and is not confined to national elections. This is particularly so in Africa, which is the most “centralized” continent. In contrast, a majority of the countries in the Middle East and Pacific have electoral laws that apply exclusively to the central level. The only factor (other than region) that seems to be correlated with degree of centralization is colonial legacy; former British colonies tend to have more decentralized legislation.
The third aspect to be considered here is whether voting at the national level is voluntary or compulsory. Voting is compulsory in 25 countries, representing 12% of the total countries. The region where compulsory voting is most popular is clearly the Americas, where one quarter of the countries (26%) has adopted such legislation. In contrast it is in Africa that governments have been the most reluctant to force their electorates to go to the polls (only two countries, Central African Republic and Rwanda, have compulsory voting). The propensity to adopt compulsory voting appears to be unrelated to any obvious characteristic, except being a former Spanish colony, which is of course strongly correlated with being in the Americas.
The final issue concerns the interpretation of the electoral law, and the question here is whether the ordinary courts are entirely responsible for (first level) electoral disputes or whether the electoral management body or some special electoral tribunal can also be involved. Two thirds of the countries (69%) have found it useful to grant at least some authority to specialized agencies or tribunals. In this case, regional variations tend to be muted but we observe that former French and British colonies are more likely to have bestowed some power to special tribunals or quasi-tribunals. Former French colonies appear to have followed the practice established in the “mother” country but the same explanation does not hold in the case of former British colonies since Britain does not have special tribunals.
In this section we observed that:
- The dominant pattern is for the electoral law to be part of the constitution, to apply to local or regional elections as well, to be interpreted at least at the first level by specialized courts, and for voting to be voluntary.
-
Except in the latter case, however, these tendencies are relatively weak, and many countries proceed differently.
- The choices that are made with respect to the broad legal framework are unrelated to the degree of democracy or level of economic development.
-
The only factor that seems to have some impact is colonial heritage.
The impact of degree of democracy, colonial heritage and economic development on legal framework
| LEGAL FRAMEWORK |
Degree of democracy |
Former French colony |
Former British colony |
Former Spanish colony |
Economic development |
Part of the constitution
|
-
|
less likely
|
-
|
less likely
|
-
|
Broad coverage of elections
|
-
|
|
less likely |
-
|
-
|
| Compulsory voting |
- |
- |
- |
more likely
|
-
|
Special organs in charge of electoral disputes
|
-
|
more likely
|
more likely
|
-
|
-
|
