Electoral processes are complex, standardized activities that require clear, simple and relatively comprehensive legal definition in order to promote consistency, equity and a common understanding of electoral frameworks by all electoral stakeholders.
The electoral legal framework within which an EMB operates may be defined in many different types of instruments—including international and regional treaties, the constitution, national and sub-national statute law, and EMB and other regulations.
International and regional treaties and agreements provide a framework of norms against which a country’s electoral legal arrangements can be defined and assessed.
There is a trend toward defining key electoral issues in the constitution, as this may provide a workable means of protecting electoral norms from manipulation by the ruling party. Electoral arrangements may be further defined in statute law, secondary legislation and regulations.
Electoral statute law may either be a single law or multiple laws that need to be kept in harmony. EMBs or the executive branch of government may be able to issue regulations to fill in gaps in the law; usually these would be subject to some form of judicial or other review. EMBs may also be able to set their own administrative policies. For confidence in election processes, it is important that all parts of the electoral framework— treaties, constitution, statute laws, and EMB and other regulations, as well as administrative policies—are freely and publicly available, and that changes are discussed and shared with key stakeholders.
A balance needs to be struck between providing for certainty and consistency in the legal framework, on the one hand, and allowing an EMB the flexibility to respond effectively to changing electoral circumstances on the other. The amount of electoral detail in higher-level instruments— constitutions and statute laws—will often depend on the level of trust in political participants and the EMB’s performance.
International IDEA’s publication International Obligations for Elections: Guidelines for Legal Frameworks provides guidelines for assessing electoral legal frameworks.
EMBs’ powers to make regulations should always be exercised in line with both the constitution and the electoral law.
