Electoral management is fundamental and must be taken into account in the design a legal framework. The more successful electoral management can be, the more successful the election as a whole becomes. To achieve efficient and effective electoral management requires several conditions as follows: first, electoral legislation has to detail every single phase, stage, activity, and procedure in order to prevent any mistake or illegality; second, electoral authorities have to be designed according to the country’s or the region’s political and social particularities; third, such authorities must have institutional powers to perform their duties under the general principles ruling electoral processes: certainty, legality, independence, impartiality, transparency and objectivity. 

International law does not proscribe in detail the attributes of electoral management bodies but the United Nations Human Rights Council has stated that, “an independent electoral authority should be established to supervise the electoral process, and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant.”[i]

The”primary objective of a legal framework is to guide the EMB and enable it to achieve the delivery of a free and fair election to the electorate”[ii] and to do so the efficient and effective performance of electoral management is fundamental.

Bearing this in mind, the ideal requirements that electoral authorities have to meet are further discussed in this section but can be summed up as follows:

• Professional and independent performance in respect to the political party in power.  They have to treat all the contenders in an impartial way. 
• Neutrality has to be recognized as one of its distinctive features by every single contender.
• Performance has to be efficacious and authority must be provided with as much material resources as required to fulfill the duties.  
• Performance has to be closely related to the legal framework ruling the existence of the electoral authority.  Electoral managers have to be scrutinized by permanent and independent examiners, which can be judicial. 

The performance of electoral management bodies will also face constraints in any environment.  Some of these constraints are limited independence, unclear mandates, inadequate resources, the appointment procedures and tenure of members of the electoral management body.[iii]  Especially in post-conflict countries, the political stakes may be extremely high, and the commitment to democracy among former combatants may be weak.[iv]

The management of democratic elections requires independent and non-partisan electoral authorities that are free from any kind of political bias.  This a fundamental issue, especially for countries in which a democratic regime is not yet consolidated and where electoral managers may take and execute important decisions which can directly affect the electoral results.  Therefore, specific political conditions have to be taken into account to determine who is going to be in charge of electoral management and what kind of institution will be empowered to do so. 

Such legislative decisions have to determine both the size and the integration of electoral authorities.  Such legislative decisions also have to determine who will be appointed and how the appointments and the removals from such appointments will be done. The establishment of electoral authorities has to take into account considerations as follows:

i. Structures

The managerial structure has to include a higher electoral agency whether central or national.  There can also be some lower agencies at state or regional level.  Depending on the extension of electoral jurisdiction and communications systems there can even be district electoral agencies. Intermediate electoral agencies can exist as long as the respective electoral system, the geographical situation and the demographic density of the country make it reasonable. The pre-eminence of the central electoral authority and the relationship between levels of electoral authority should be clearly set out in the legal framework. At the same time, it is convenient to prevent a widespread creation of trivial electoral agencies.  Trivial and unnecessary electoral agencies have a straightforward effect: they do increase electoral spending. 

The electoral structure is organized around voting places.  Voting places are the core of any electoral structure. A fundamental task for the legal framework is to define in a precise and clear way how the voting places will be integrated, and how they relate to headquarters and to other electoral authorities. The legal framework also has to set down the nature of relations voting places will have with governmental authorities on election-day. In addition to the electoral management body, the structure to deliver elections will likely also count on the assistance of government departments at various levels.  It is preferable that the legal framework anticipates these relations and establishes the direction of the electoral authorities as paramount.                                                                                                                               

ii. Accountability

The accountability of electoral authorities should be legislated in a clear way given the fundamental importance of these organizations, the constraints and challenges they may encounter and the need for overriding public confidence.Accountability may be achieved in a number of ways.  Ultimate accountability should be directly to the national elected assembly in order to avoid government interference or control. Often this may take the form of reporting to a legislative committee.  In addition to legislative oversight, independent audits, public reports and open meetings are all manners, in which accountability may be pursued,[v]

iii. Composition Requirements

There is no single best way to constitute an electoral management body that is transferrable to all countries.  The situational context of each country is an important consideration.  Perhaps foremost among considerations is the relationship of public trust and power.

The lower the public confidence in public institutions, the stronger electoral authorities may become.  Such a situation is not the case for consolidated democratic federations.  As a matter of fact, electoral management can be grouped as follows:

• Countries in which electoral management is vested in ordinary executives (national or local). In such cases, regular review systems are not modified for ordinary executives are usually seen as trustworthy, neutral, and impartial.  In these cases, disputes may also be settled by the ordinary courts.  This situation may likely be associated with established democracies.[vi]
• Countries in which electoral boards are created to review the electoral management carried out by the Executive Branch of Government.  Such boards are usually not empowered to manage electoral processes.  
• Countries in which specific electoral divisions within a traditional branch of government are empowered to organize elections.
• Countries in which the level of confidence is so low that autonomous electoral authorities are set down in the Constitution.  Such authorities not only replace the governmental management of elections, but also prevent any kind of external influence by any other governmental organization.  Actually they can be seen as a kind of fourth branch of government. The creation of autonomous electoral authorities can be seen as an important step towards the construction of an independent and impartial electoral management trusted by voters and political parties. 

In some countries, the composition of electoral management bodies may include or be comprised of political representatives.  The potential disadvantage to this approach is the apparent politicization of the management of elections but at the same time, “it can be useful in building confidence in countries (such as those emerging from conflict) in which there are doubts about the honesty and integrity of the election system.”[vii]  If this partisan approach to composition is selected it is,”greatly enhanced where its membership is representative of the political spectrum.”[viii]  Some countries may, of course, define a composition that includes both partisan and non-partisans but in any event the obligation once appointed is to act in an independent and impartial manner. 

In some cases, electoral management bodies may incorporate the judiciary directly and in other cases, such as post-conflict situations, membership might also be extended to the international community.[ix]  Other considerations may include composition that is reflective of the nation as a whole and ensuring participation by women.[x] 

As long as it is possible, it is recommended to appoint professionals who know the legal framework ruling the election’s management.  Usually it is required that at least some of the individuals comprising electoral authorities are legal professionals.  Some problems affecting lower electoral authorities can be released from such a requirement if it is reasonable in the circumstances.  Both the independence and the impartiality of electoral authorities that include officials or judges appointed by the ruling party can be jeopardized. A reasonable solution can be found in those cases in which political parties are empowered to express their opinions before the electoral authorities, with no power to play a role in solving electoral issues whatsoever. 

The appointment of honorable political agents such as non-governmental organizations and members of the Judicial Branch of Government to occupy electoral Offices, are usually good options.

Of course, to select an agency independent from traditional powers is the right move for countries going through a political transition.  However, such a selection can raise some questions in the long run.  The more successful the democratic transition can be, the less crucial an independent electoral authority may become.  This is particularly true in the case of countries in which a real system of checks and balances has been consolidated. Checks and balances represent the existence of the rule of law and the strengthening of public confidence towards public agencies.  To keep an independent electoral authority under such circumstances can be very expensive therefore requiring careful thought.  

Whatever the determination of the nature of composition of the electoral management body, “The overall credibility of an electoral process is substantially dependent on all relevant groups (including political parties, government, civil society and the media) being aware of and participating in the debate surrounding the formation of the electoral structure and processes”[xi]  Therefore electoral management bodies must be sustained by on-going communication and transparency. 

A similar requirement for communication within electoral management bodies also exists and can be further amplified dependent upon the composition of the body. Communication and consensus are particular assets to electoral management bodies, “Since decisions on election issues are often of extreme political sensitivity, those taken by vote rather than by consensus can undermine the election management bodies appearance of neutrality and professionalism.”[xii]

 As a 2010 report of the OSCE concludes:

Whichever body is constituted to administer a particular election, its work should be efficient, collegial, impartial, transparent and independent from the state authorities and other political influences. It should be guided by the fair implementation of laws with no regard for political considerations, especially in cases where election commissions are multipartite, and should enjoy the confidence of election stakeholders.[xiii]

iv. Terms

Electoral authorities have to be permanent. In some countries they are open for business only during a period of time.  However the permanent work of electoral authorities is necessary when these bodies are in charge of the voter registry.  In such cases, the permanent activities of electoral authorities have to be legislated. A voter registry has to be up and running for every single election.  Usually lower electoral authorities, as those in charge of small electoral territories or those in charge of voting places are not permanent; they are open at the beginning of electoral periods and are shut down once the final results have been validated. 

Electoral organizations should better be partially renewed over time.  It is not very wise to renew the entire composition of electoral authorities every single election As a matter of fact, experience can help to raise the institutions’ productivity.    In terms of process, all the procedures and fundamentals supporting appointments and impeachments have to be legislated in order to immunize members of electoral authorities against any sort of political pressure. Furthermore, “If the legal framework adopts a party-oriented formula, then it should address how and when changes in commission membership should occur when there are changes in the strength and membership of parties, especially where there are new parties.”[xiv]

As important as it is to ensure that the appointment to electoral management bodies is well defined and transparent, so too should the removal or suspension of members be clearly set out in the legal framework in a way that is, “designed to foster the independence and impartiality of members, including provisions protecting members from arbitrary removal.”[xv]

Both the appointment and removal procedures should be,” undertaken in a manner that is impartial, accountable and transparent.”[xvi]

The electoral officials’ wages must not be directly controlled by the government. Some countries also grant immunity to electoral officials in the  performance of their duties. 

v. Funding

Electoral authorities have to be comprised before the election takes place under the law. It is also crucial that electoral authorities are provided with adequate funding to perform their duties.  Legal frameworks have to include clear and objective rules on how permanent activities of electoral authorities will be funded, in order to prevent budgets from becoming a political tool which can be employed by a Parliament, political parties or the Government against electoral authorities. 

Among the major methods by which electoral management bodies may be funded are:

• allocation through a department of government,
• a direct vote of parliament (sometimes enabled through an all-party committee),
• an advance lump sum and audited allocation or
• direct and uncontrolled access to the State treasury for funding elections and reports to parliament only after an election.[xvii]

In some cases, international aid may also assist the financing of elections.

The effectiveness and trustworthiness of an autonomous electoral authority is based not only on the existence of sound finances, but on the existence of impartial and independent employees working for it. Both material and personnel resources are required to be clearly identified and provided on a timely and transparent basis.

Overall, electoral management bodies in general tend to be expensive institutions.  Actually they can be seen as representing a disproportionate expense within the general framework of public services offered to taxpayers. In some countries at critical points, however, democracy is considered to be so valuable that whatever public funds used to pay for electoral institutions seem to be justified. Usually successful elections are not reviewed from financial points of view. This is particularly true for those cases in which electoral expenses have been funded through international cooperation.  However, as soon as electoral processes become more and more successful, democratic regimes become more and more consolidated and international funds become more and more scarce, financial considerations can become a central consideration. Under such conditions democratizing countries should do well to ensure that electoral expenses are appropriate and not exaggerated. 

vi. Powers and Duties

Electoral management bodies’ (EMB) power and duties have to be legislated in a clear way. Clear electoral legislation will also contribute to more efficacious supervision of electoral authorities

The legal framework should clearly define the duties and functions of the EMB. These must particularly include the following:

• Ensuring that election officials and staff responsible for the administration of the election are well trained and act impartially and independently of any political interest

• Ensuring that clear voting procedures are established and made known to the voting public

• Ensuring that voters are informed and educated concerning the election processes, contesting political parties and candidates

• Ensuring the registration of voters and updating voter registers

• Ensuring the secrecy of the vote

• Ensuring the integrity of the ballot through appropriate measures to prevent unlawful and fraudulent voting

• Ensuring the integrity of the process for the transparent counting, tabulating and aggregating of votes.

In some cases the duties and functions of an EMB may also include the following:

• Certification of the final election results

• Delimitation of electoral boundaries

• Monitoring and overseeing electoral campaign finance and expenditure

• Research, advice to government and/or parliament, and international liaison.[xviii]

In still other cases, electoral management bodies are empowered to resolve election related disputes.Electoral authorities have to be independent, transparent, and impartial.  Once an electoral authority has been comprised, it must perform its duties and execute its powers in an impartial way.  Every legal framework aims at guiding electoral authorities on how they have to organize a free and fair election.  In doing so, electoral authorities have to perform their duties in an efficient as well as impartial way. 

Some of  the fundamental features of electoral authorities some can be listed as follows: a) Independence and Impartiality; b) Efficiency and Effectiveness; c) Professionalism, Legality, and Objectivity; and d) Clarity.