Electoral legislation is
the collection of ‘legal structural elements defining or influencing an
electoral process’. These can include:[1]
- The constitution, which is
the supreme legislative act in a country;
- National laws, which may
take the form of one comprehensive electoral code, or be a set of laws covering
different aspects of the electoral process;
- Provincial or state laws,
which in federal countries may govern processes for provincial or state and
local electoral events (as in Australia), or for national electoral events (as
in the United States);
- Ordinances and regulations made
by national or lower-level authorities;
- Regulations, proclamations and
directives issued by an electoral management body (EMB), if it has powers to do
so;
- Customary laws and
conventions which may be integrated into an electoral law, or EMB regulations
or policies, dealing with issues such as separate voter registration and voting
arrangements for women and men;
- Administrative policies
introduced by an EMB or other bodies; and
- Codes of conduct (voluntary
or otherwise), some of which may be unspoken and may have a direct or indirect
impact on the electoral process, for example, for EMBs, election participants,
observers, and election reporting by the media.
The framework can also
incorporate international standards derived from international agreements and
frameworks. For example, articles 7 and 8 of the UN Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) require that
state parties take all appropriate measures to eliminate discrimination against
women in the political and public life of a country and to ensure that women,
on equal terms with men and without any discrimination, have the opportunity to
represent their governments at the international level and to participate in
the work of international organizations. Additionally, article 21 of the
Universal Declaration of Human Rights states in clauses 1 and 3 that ‘Everyone
has the right to take part in the government of his country, directly or
through freely chosen representatives’ and ‘The will of the people shall be the
basis of the authority of government; this will shall be expressed in periodic
and genuine elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures’.
Regardless of the wider
institutional framework in a given country, there will always be a body or
bodies responsible for electoral management (International IDEA
2014:5). In emerging democracies legal frameworks often help promote electoral
integrity by making EMBs responsible for managing the entire process
(International IDEA 2014:75). However, some functions, such as boundary
delimitation, voter registration, the registration and funding of political
parties, electoral dispute resolution, the certification and announcement of
election results, and voter education and information may also be contracted
out by an EMB or supported by other institutions or civil society organizations
(CSOs). If electoral functions are assigned to more than one institution, the
legal and policy framework needs to be very clear on each institution’s
functional responsibilities, and on the hierarchy of authority and coordination
mechanisms between those institutions (International IDEA 2014:77-78).
[1] Electoral Management Design: The
International IDEA Handbook (Stockholm: International IDEA, 2006),
chapter 2, p. 43, available athttps://www.idea.int/publications/catalogue/electoral-management-design-international-idea-handbook-2006.
