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.
[1] International Covenant on Civil and Political Rights, Article 25 (b). http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[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)
