A legal framework is always fundamental. Legal norms are mandatory and
determine how the regulation of an electoral system works. Legal devices
provide electoral actions with certainty and security.
Within democratic and constitutional regimes, electoral issues are legally
regulated by diverse and coordinated legislation derived from a fundamental
norm, or by a Constitution. Such instruments can be listed as follows:
- Constitution: It is a
fundamental and mandatory rule from which derives the legal system of a
country. The Constitution sets down basic rules on the way a nation and
its government are organized, on the fundamental rights which will be
enforced, on the basic principles guiding the electoral system, on the
conditions that individuals have to satisfy to become citizens, on the
existence of political parties, electoral authorities and electoral
courts, and on procedural issues. Constitutional rules are the highest
rules in a legal system; they cannot be modified easily and last longer
than others.
- International treaties: International treaties promote fundamental rights, particularly those
related to political participation and voting.
- Electoral laws: Electoral
laws are normally enacted by the Congress. Democratic Congresses around the world represent the people’s will, through a representative mandate. The majority of electoral rules are
contained in electoral laws. They are much more flexible than
constitutional laws and are useful to regulate electoral topics in a more
handy way.
- Judicial precedents: These
are rulings and resolutions issued by judges and courts in order to solve
electoral disputes. Nowadays, they have reached a top standard quality due
to the relevance of the judges and courts in general within a nation’s
institutional life.
- Electoral Authorities’
Executive Orders: These are issued by administrative authorities in order
to complement constitutional and legal rules.
- Codes
of Conduct: These
are rules agreed by political agents. The codes of conduct aim at
enhancing respectful, ordered and civilized conduct during
elections. Referees are usually in charge of enforcing these codes.
At the same time, it must be
recognized that the terminology for elements of the legal framework differ
between jurisdictions and also that jurisdictions need not necessarily have
all the elements, as is the case for example in the United Kingdom where there
is no written constitution. In other specific cases, additional unique
instruments are relevant, for example, ”In post-conflict countries,
the peace agreement may
Stipulate the conditions for elections.”[i]
[i] United
Nations, Department of Political Affairs, Women
& Elections: Guide to Promoting the Participation of Women in Elections (United
Nations, 2005), 22.
