Election integrity requires that all participants must be treated equally, and
integrity safeguards must apply to all participants and the entire electoral process.
The three basic components of fairness and impartiality
are:
(The
first two elements are separately considered, at greater length in subsequent
chapters.)
Sound
Legal Framework
An electoral system is based
on its legal framework. The legal framework is the means by which a state can establish
the basis for ”genuine periodic elections … guaranteeing the free
expression of the will of the electorate”.[1] A
sound legal framework will provide for impartial and professional electoral
administration, and fairly and equally define the rights and responsibilities of
participants in the electoral process.
The legal framework is often composed
of both specific laws (legislative framework) and regulatory authority
sufficient for effective management of the electoral process and protection of
the rights of all participants. The
legal framework provides for the equal treatment of all participants in the
electoral process, and includes specific institutional mechanisms to protect
electoral integrity (such as oversight and enforcement, complaints and appeals,
and institutional checks-and-balances).
The Existing Commitments for Democratic Elections in OSCE Participating States states that, “A
clear and detailed legislative framework for conducting elections must be
established through statutory law, either in a comprehensive code or through a
set of laws that operate together consistently and without ambiguities or
omissions.”[2] It has also been argued that electoral law
should be established at a high normative level so that it is insulated from
regular amendments that could undermine the plans of electoral participants –
and, especially, that electoral law should not be amended for a substantial
period of time (such as one year) prior to an election.[3]
Exceptions might be made, however, in “extraordinary cases”.[4]
Completeness, internal
coherence, and clear and precise provisions help ensure that the legal framework
is unambiguous and can be interpreted and implemented according to the letter
and spirit of the law. Many electoral integrity problems can be avoided with an
up-to-date legal framework that also reflects current conditions within the country—for
example, delimitation of electoral districts according to the equality of voting
principle and re-delimitation of electoral boundaries on a regular schedule
related to the electoral cycle.
Professional
and Impartial Administration
A legal or institutional structure
is only as good as its implementation. The electoral authorities are responsible
for implementing the election process as prescribed by law. They must fulfill
this responsibility impartially and objectively, without political bias or interference. Electoral administration should ideally be
legally and institutionally established on an autonomous basis that permits
independence of operation.[5]
Effective
electoral administration depends on whether the administration has sufficient
staff and other resources of its own and can draw upon other State resources if
necessary, while preserving its primacy over electoral policies and practices.[6]
Neutral administration treats
all political parties and candidates equally, without discrimination or
partiality. If the composition or actions of electoral administration is viewed
as unbalanced, public trust in the system will be eroded.
Electoral systems may follow
different approaches to ensure neutral and equitable administration. In
countries where there is broad citizen trust in the competence and professionalism
of officials, election processes can be administered directly by government
personnel and agencies. This is the case in France,
Norway, Sweden, the UK,
and latterly the Czech Republic
and Hungary,
where central electoral administration functions are discharged directly by government
officials at the national and lower levels. However, where there is less trust in the
professionalism of civil servants or a history of irregularities in the electoral
process an independent electoral commission is often established
under law. This helps to place election administration outside government power or
ruling-party influence.
Several Eastern European countries set up independent commissions in
1989-90, during their transition to democracy. A large number of Commonwealth-member States have also
established commissions after independence, since there was reduced confidence
in the ability of the emerging governments to conduct a fair and proper
electoral process. An independent electoral commission can help build a sense
of trust in elections and confidence in their impartiality, but such
commissions vary with respect to the actual extent of their executive powers
and range of operational responsibilities.
An independent electoral
commission can certainly help to ensure more professional, impartial and accountable
election administration. Nonetheless, a commission cannot be protected from all
political interference whatsoever. (And it may be difficult to expect even the most
fair-minded and ethical individuals to conduct themselves with utter and
complete impartiality through the entire range of decision-making entailed by
an election.)
An alternative to depending on
non-partisanship is to ensure political balance in the composition of a
commission instead. This may be done by
giving representatives of the different political parties a role in
administering the election. The political representatives appointed to an
electoral commission can only play a consultative role, or be accorded full
member status (including a vote, along with other commission members, on
matters for decision).[7]
Many electoral administration systems
combine the two approaches, by establishing an independent professional commission
and also providing for a politically balanced component. In several States
which have emerged from the former
Yugoslavia, and in some other countries, the professional membership of the
commission (sometimes referred to as “core” membership) is appointed on a
standing basis, while political party representatives (the “expanded”
membership) are brought on-board once an electoral process commences.
Issues concerning the
effectiveness of the political representatives are raised, however, when their
appointments are made only after the candidates put forward by their parties
have been registered by the commission.
To eliminate this problem, some countries (like Croatia) provide for earlier appointment of political party
representatives but limit political party participation on electoral
commissions to parties which have parliamentary representation. (While this makes earlier appointment
possible, it is unfortunate that the non-parliamentary parties have no
representation while parliamentary ones do.)
Some systems seek to ensure
the neutrality of the key electoral administrators by distancing them from
politics. Thus, they may be appointed for a definite term of office, which may
be shortened only for cause, and after formal proceedings are conducted. For example, the Election Commission of India is a permanent constitutional body;
the President appoints the Chief Electoral Commissioner and other Election
Commissioners for six-year terms (or up to age 65); and the Chief Electoral
Commissioner can be removed from office only if impeached by Parliament.
Other systems bar key
electoral administrators from any participation in politics. In Canada,
the Chief Electoral Officer and the Deputy Chief Electoral Officer are not even
allowed to vote in federal elections. Electoral administrators may also be
required to give up political party positions while serving in an electoral
management body.
In the United States,
on the other hand, some states have election commissions but many assign
electoral management to officials (such as the lieutenant governor or secretary
of state) who are elected officials and therefore linked to politics.
Equal
Treatment
Equal treatment, including equal opportunity and equitable access means that all participants must receive the same treatment from electoral
administrators, and have the same opportunities to participate. The concept of equal
treatment applies to the receipt of information, access to the media, ability
to communicate with electors through campaigning, involvement in a fair and
neutral voter registration process, access to voting facilities and opportunity
to pursue remedies through established complaint channels.
Larger and smaller parties
have different human and financial
resources, as well as different organizational capacity and outreach. Even if
there is equal opportunity, therefore, the inequality of resources may still create
a sense of unfairness. Appropriate
political finance regulation (dealt with elsewhere in this Topic Area) can help
address this problem.
[2] OSCE/ODIHR, Existing
Commitments for Democratic Elections in OSCE Participating States” (Warsaw,
2003), Part One, para. 2.5
[3] See
European Commission for Democracy through Law (Venice Commission), Code of Good Practice in Electoral Matters, Opinion No. 190/2002 (May
2003), pp. 10 and 26.
[4] See
OSCE/ODIHR, “Existing Commitments …”, op.
cit., Part One, para. 2.5: The
“extraordinary cases” envisioned were those “in which serious deficiencies have
been revealed in the legislation or its application and when there is an
effective political and public consensus on the need to correct them”, but in
any event not if “the ability of voters, political parties or candidates to
fulfill their roles in the elections could be infringed.”
[5] See
Ibid., Part One, para. 4.1: “The administrations of elections must be
conducted autonomously, free from government or other interference, by
officials or bodies operating transparently under the law. Appointees to the election administration
shall be required to carry out their responsibilities in an effective and
impartial manner and should be individuals with the competence and commitment
to do so.” (references omitted)
For further materials on the
importance of impartial and autonomous electoral administration, see generally
Goodwin-Gill, Guy S., Free and Fair Elections: International Law and
Practice, Inter Parliamentary Union, 1994; Elklit, Jorgen and Andrew
Reynolds, “The Impact of Election Administration on the Legitimacy of Emerging
Democracies,” Commonwealth and Comparative Politics, 40(2), 2002, p.
86-119; López-Pintor, Rafael, Electoral Management Bodies as Institutions of
Governance, New York, New York: United Nations Development Programme, 2000;
Mozaffar, Shaheen and Andreas Schedler, “The Comparative Study of Electoral
Governance—Introduction,” International Political Science Review, 23(1),
2002, p. 5-27; Pastor, Robert A., “The Role of Electoral Administration in
Democratic Transitions: Implications for Policy and Research,” Democratization,
6(4), 1999, p. 1-27.
[6] See Ibid., Part One, para. 4.3: “[E]lection institutions should have
sufficient funding and other state support to enable them to operate
effectively. They should be assisted by
a professional secretariat, preferably also autonomous, and receive the support
and co-operation of other agencies. With
respect to conducting election-related activities, decisions of electoral
bodies, adopted within their areas of competence, shall be binding, and the
operation of other state agencies must be subordinate to those of the election
administration.” (references omitted)
[7] See Ibid., Part One, para. 4.2: “The impartiality of the election
administration can be achieved through either a mainly professional or
politically balanced composition.
Appointments to election administration positions at all levels should
be made in a transparent manner, and appointees should not be removed from
their positions prior to the expiration of their term, except for legal cause.”
(references omitted)
