The legal framework provides the foundation on which State institutions are built. For electoral integrity matters, the legal framework is usually set out in a number of inter-related statutes, supplemented with by-laws (sub-laws) or regulations. A glimpse at the range of approaches for designing and constructing the legal framework for elections, including provisions for electoral integrity, was provided earlier in the Fairness and Impartiality subchapter in the Overview.
The legal framework is one of the foundations for protecting the integrity of elections. Constitutions enshrine the political freedoms needed for competitive elections. Regulations ensure the fairness of the process, equality of opportunity and accountability of all participants. Codes of conduct help prevent unethical behaviour.
In most cases the groundwork of the electoral system is found in the Constitution -- the supreme law of a country. (Electoral system, in the broad sense, is meant primarily the way citizens may seek elective office and by what method those offices are awarded as a result of elections.) While a full description – such as the precise number of mandates which are available in the national parliament –is contained in the Constitution itself, often the precise specifications are addressed through legislation (sometimes high-level organic [constitutive] or constitutional legislation). For example, in many countries the Constitution indicates a range for the number of seats in parliament.
In some countries, the basis for election administration proper – such as the appointment, structure and functions of a national electoral commission – is also established under the Constitution. This strong basis raises the perceived rank of electoral administrators and helps to guarantee their independence and professional status. However, the electoral administration structure can also be established effectively through other law(s).
Just as there are two broad approaches (professionalism and impartiality vice political balance) in the membership of national electoral commissions, there are different approaches to making appointments to electoral administration. In some systems, Parliament itself supervises electoral bodies and makes appointments to them (although both such roles could be seen as contrary to Separation of Power principles, in that the Legislative branch would be exercising certain Executive functions). In other systems, checks-and-balances approaches are followed, whereby a body or bodies (which could include Parliament as well as non-governmental associations such as judicial or juridical councils) propose appointments and Parliament and/or the Head of State makes the appointments or vice versa.
By introducing checks and balances into the appointment process, or more broadly the notion that appointments must be based on a political consensus, the confidence in and credibility of an EMB can be strengthened. An important political challenge in this context is the process of appointing the chair, particularly if she or he holds a tie-breaking vote in a commission. This issue became a major sticking-point in negotiations among the political parties, facilitated by the OSCE, EU Special Representative and US Embassy, in the Former Yugoslav Republic of Macedonia prior to the 2002 parliamentary elections that were the first such elections following a civil conflict. (Ultimately, it was agreed that the President of the Republic would nominate a person for Chair of the State Election Commission, subject to approval by Parliament.)
Other legislation including electoral laws, judicial and penal codes and civil rights statutes, as well as regulations and codes of conduct/ethics promulgated by electoral authorities, usually in consultation with the affected organizations (such as political parties, civil society, the media and the civil service) is also included in the legal framework.
The legal framework may give powers to certain bodies over specific functions. It may also constrain these powers by dividing them between different institutions subject to a series of checks and balances. For example, electoral administration may be separated from enforcement; or an electoral agency may be given the power to administer elections, but another body authorized to delineate the electoral districts or administer public funds for political parties. Checks may be provided by delegating responsibility to an oversight agency or office (e.g., an inspector general) to monitor the administration of elections, identify problems and recommend solutions. In several countries (including Austria, Croatia, Germany and Romania), the Constitutional Court exercises supervisory as well as appellate jurisdiction over the electoral process.
Enforcement is essential for protecting election integrity. The legal framework should establish mechanisms for enforcing electoral regulations, ensuring accountability of electoral authorities and other participants in the electoral process, and deterring improper or illegal behaviour. Enforcement jurisdiction is usually assigned to the justice system, the police, and the courts; but administrative and civil sanctions can also be provided for in less serious cases.
In newer democracies, the rules for holding free and fair elections may still be evolving. In such circumstances, it may be important to include the basic principles of electoral administration in the legal framework. Once the basic legal framework is in place, further development of the institutional and administrative frameworks for elections can proceed. In countries in transition from authoritarianism to democracy, “the challenge is to negotiate electoral rules that all parties can accept and respect.”[1]
A reform of the legal framework for other purposes can be used to bring greater integrity into the electoral process. This was the case in Mexico, where legal reform led to democratic changes. A new institutional framework, including the Federal Electoral Tribunal, and new modes of citizen participation were created. The new institutions then established procedures and operating methods that reinforced the electoral integrity provisions in the new legislation.[2]
In most countries, the legal framework for elections has evolved into a complex combination of statutes, regulations, judicial rulings and actual practice. Some election laws may be new and up-to-date, while others remain unamended but still in effect. For integrity purposes, it is important to review the entire legal framework periodically and determine whether changes are needed. It is important to address gaps, overlaps and conflicts among various provisions in the legal framework. Whether designing a new system or revising an existing one, electoral administrators and policy makers would need to take a comprehensive look at all of the different laws, regulations and procedures that help protect election integrity.
Electoral administrators must be able to understand how the different legal and administrative pieces fit together, providing a consistent legal framework for promoting and protecting electoral integrity. For example: does the Penal Code cover election fraud that is criminal in nature? In a federal system, do national or state governments have jurisdiction over election conduct? Could a violation go undetected or unpunished because of a gap in the legal or administrative framework?
