The most basic questions are why a legal framework is important to democratic elections and what exactly is meant by the term “legal framework”? The first question is well answered by a publication of the National Democratic Institute for International Affairs (NDI) entitled, Promoting Legal Frameworks for Democratic Elections:

Establishing the “rules of the game” for elections should be a vital concern to political parties, candidates and citizens alike. Democratic elections serve to settle fairly and peacefully the competition among those seeking to exercise governmental powers as representatives of the people. Democratic elections also serve as the means for citizens to express freely their will as to who shall have the authority and legitimacy to wield the reins of government as their representatives. It is thus in the direct and immediate interests of electoral contestants – political parties and candidates – and of the population as a whole – citizens and their associations – to ensure that the rules for electoral competition, as well as the way those rules are enforced, guarantee that a genuine democratic election takes place.[i]

From an electoral point of view, “legal framework” has both a broad and a technical meaning. Broadly speaking, a legal framework may be seen as the entirety of a group of constitutional, legislative, regulatory, jurisprudential and managerial rules that together establish the voting rights used by citizens to elect representative officials. In a more technical sense, the legal framework can also be seen as a collection of procedural techniques. From this topic’s point of view, “legal framework” is understood in both such meanings however the default approach will be to develop a working definition of “legal framework” as broad as possible in order to achieve a more fulsome understanding.

Indeed, a legal framework may also be further extended by electoral regulations that authorize citizens to use public powers on their own (using legal devices to achieve legislative goals, to define public policies, to impeach any public officer). Elections are neither the only way to elect public officials (there are legal and randomly made appointments; besides, elections are also undertaken by collegiate institutions such as corporations’ boards following no electoral laws whatsoever) nor are used to exclusively to select public officials. As a matter of fact, citizens also use elections to accept or reject legislative bills, governmental decisions or resolutions taken by a public authority (referendum, collective lawsuits and impeachments are used to do so).

Guiding Principles

Any country is free to select the most suitable electoral system. However, such a freedom is limited and to be considered democratic has to be established in line with international regulations and principles. Countries also bring along their own history and context. For example, among countries with a colonial history, there is a common trend according to which the revision of legal frameworks includes adoption of colonial electoral systems. That is the reason why the revision of any country’s legal framework has to be undertaken in a sensitive way that takes into account each country’s historical, social and cultural particularities. This will be discussed further in the next section.

It can be said, however, that a legal framework has to be structured in a way in which principles are included as follows:

Likewise, it is necessary that a legal framework includes effective mechanisms to ensure full enforcement of the law and civil rights. Punishments must follow transgressions.

Legal frameworks have to endorse the rights of voters, political parties, and candidates to file appeals before legitimate authorities or legitimate courts to challenge any violation against civil rights. The legal framework has to oblige electoral authorities and courts to resolve electoral appeals related to violations of the right to vote and provide for this to be done in an agile way. In order to achieve definitive rulings on electoral issues, electoral laws have to authorize higher authorities to review the orders and resolutions issued by inferior ones. Rulings issued by the highest authorities and the highest courts, have to be enforced immediately.

Legal frameworks also have to establish reasonable deadlines within which electoral appeals can be filed, analyzed and resolved. The rulings on electoral appeals have to be communicated to the contesting parties immediately. Some appeals can be solved with no delay, while the resolution of others can take days or even longer. Bearing this in mind, the introduction of some flexible deadlines can be useful as long as the rank of the deciding authority, the nature of the case and the electoral urgency are all taken into account. Many problems can be avoided when appeals are solved just in time. However, some appeals can only be filed after the election has concluded.

Viewed from the most basic perspective, “Elections are examples of human rights in practice”[i] As such, free and fair elections must always fulfill basic principles aimed at ensuring universal, free, equal, direct, and confidential votes.

Perhaps the most fundamental of international standards related to elections is that in fact elections must be held. Article 21 (3) of the Universal Declaration of Human Rights (UDHR 1948) reads, “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.”[ii] To do otherwise, it is observed, “the government does not ground its authority in the will of the people.”[iii] Although non-binding the UDHR was a watershed, establishing the broadly accepted rights of the individual in relation to the state[iv] and important components are now part of international customary law.

Additional core principles established and promoted by international standards can be listed as follows:

An independent system of control, including the right to legal remedy, has to be installed in order to ensure the integrity of elections It is interesting to note, that while the requirement for genuine elections is clearly set out in international law, a specific definition of this term is not equally well established. However, “over time, the term “genuine elections” has come to be understood as elections that are competitive and offer voters a real choice, where other essential fundamental rights are fulfilled, where the will of the voters is freely expressed, and where votes are counted honestly and accurately.”[ix] The Organization for Security and Co-operation in Europe (OSCE) offers a further very succinct summary of key principles in its Election Observation Handbook (2010) stating them, “can be summed up in seven words: universal, equal, fair, secret, free, transparent and accountable.”[x]

Such principles are usually contained in international treaties and covenants. Yet it is interesting to observe that while international law establishes key minimum standards regarding democratic governance, “it does not establish a stand-alone “right to democracy” per se. This is largely because the term and concept of democracy is too broad and too vague to be regulated by a single legal norm.”[xi]

Nevertheless international law and standards do establish critical rights such as the right to genuine elections as referred to above in Article 21(3) of the UDHR and as set out in Article 25 of the International Covenant on Civil and Political Rights (ICCPR 1966). Together with the UDHR, the ICCPR is among the very leading sources of international standards. In fact, Article 25 of the ICCPR has been referred to as “the cornerstone of democratic governance and genuine elections in international law.”[xii] Of note, the ICCPR has been signed and ratified by more than 160 States thereby making it legally binding in those cases.

International standards are also contained in further United Nations and regional treaties and documents. Important among these are:

A requirement to adhere to the aforementioned principles in a particular country depends on the inclusion of that country as signatory to the international document. However, the normative guidance delivered by international rules is expected to further encourage promotion and support of international rules and guiding principles beyond simply the signatory countries. The European Union Compendium of International Standards for Elections concludes that legal force notwithstanding, “these instruments have strong political and moral force.”[xiii]When a nation’s legal framework is created or under revision, the nation is bound by the international treaties it has signed. Therefore, electoral rules derived from international treaties have to be upheld and will have even constitutional or statutory rank. Other United Nations’ documents unsigned by a country can, nonetheless, incorporate persuasive electoral standards within the electoral regime of that country.

In addition to international and regional treaties, covenants and convention the review and revision of legal frameworks can also take into account additional references such as:

As the International Institute for Democracy and Electoral Assistance (IDEA) sums up, “The legal framework should be so structured as to be unambiguous, understandable and transparent, and should address all components of an electoral system necessary to ensure democratic elections.”[xvi] The requirement for accessibility of the legal framework should also take into consideration the multiple language requirements that may exist in a given country.

In addition to whatever force of international law may arise from such documents, “In any case it is hoped that the overall normative guidance they provide will nevertheless foster the promotion of, and support for, these international standards.”[xvii]

It is important to evaluate the way in which electoral legal frameworks governing a country are in line with international standards. Such evaluation can offer a catalogue of constructive proposals in order to improve and correct legal frameworks as well as to introduce more effective practices aimed at improving the legislation. At the same time, it is important to remember that there are no general models or “one size fits all” when it comes to electoral rules. Therefore, systems and practices that are applied in one country are not necessarily ideal for another one.

Structural Underpinnings of the Legal Framework

The organization of territorial, political and governmental systems differs from country to country and impacts the design of the electoral framework. Similarly, the legal instruments upon which the electoral framework rests may differ markedly and be further differentiated by different legal traditions which interpret and apply the law. These underpinnings greatly influence the design and revision of the legal framework of elections so as to be relevant to the particular country.

Different countries may design structural underpinnings in very different ways. There are other structural underpinnings which may differentiate countries and impact the electoral legal framework. For example, indirect elections and semi-direct instruments are both options; however, the resulting limitations to the vote, tending to particularize it instead of being universal, as well as non-competitive one party elections, should not be welcomed.

Although the juridical tradition over which the legal framework is developed is not itself a concrete design such as the political or governmental system, its location in this topic is due to its contextual importance.

Different Legal Traditions

There are certain general categories of legal tradition that differentiate legal systems by country or time. These legal traditions are shared by a certain group or whole systems and make it possible to identify different legal families. In other words, from understanding the legal tradition in which each legal system is affiliated it is possible to speak of different legal families. However, even though a national legal system can belong to an identified legal family, simultaneously, at the local or “communitary” jurisdiction, a diverse legal system belonging to a different legal tradition can exist. Indeed, “It is difficult to point to one country that has a pure legal tradition without influence from other systems. For historical reasons, as well as political and economic influences, the legal systems of countries are often an amalgamation of various legal systems, incorporating elements of different legal traditions.”[i]

Canada is an example of this situation: its national system belongs to the common law tradition, while the legal system in the province of Québec belongs to the Civil Law tradition. Another example can be found among the different Latin American countries with indigenous populations, whose national systems belong to the Civil Law family and, simultaneously, in more reduced territorial jurisdictions, the so called indigenous consuetudinary law is applied; including with respect to electoral matters.

Indeed, there are several legal families derived from a common origin or past, from similar institutions, from a language code or shared concepts, from the similarity of the sources of the law, from the community of proceedings and the methods or techniques used by jurists, as well as from the similar philosophical, economic or political principles which inform each legal system.

Knowing the family in which each national legal system belongs is useful to widen the perspective of the institution or the electoral process, as well as to obtain a more informed and reliable understanding of differences among legal systems.

Since the study must take into account the family which the system belongs to and consider its cultural, economic, political and social contexts, the translation of terminology can be problematic when trying to understand, explain or compare a certain country’s or countries’ electoral institutions, instruments, or processes.

The Roman-Germanic, Roman-Canonic, or civil law families, have their origins in Roman Law (the Twelve Tables, Corpus Iuris Civile, and Corpus Iuris Canonici) and was decisively influenced by Canonic Law. Also, it was enriched with the contributions of commentators and “post-commentators”, and the work of the Latin-Germanic universities’ jurists. This way the so-called ius commune was formed. Later through codification processes, from which several civil, commerce, criminal or procedural codes were made, continued to the conformation of national laws arriving in the creation of the constitutions. In this legal tradition, the development of civil laws and the codification of legal dispositions based on justice and equity was favored. Countries in the Scandinavian region, Latin America, several African countries which had been European colonies, and several Continental European nations fundamentally belong to this legal family.

The common law family arrived during the XI century in England. This legal tradition has had a wide diffusion in the majority of the English-speaking countries. It is characterized by the creation of legal dispositions coming from the judicial resolutions. In other words, the system follows the judicial precedent through which a particular case receives the same legal solution given to a previous and similar case. Therefore, opposite to the families that favor legislative creation, the law is a product of the judges’ labor. Basically, the United Kingdom, some African, American and Oceanic nations belonging to the Commonwealth legal system are found within this legal family. Most of these countries enforce English Law and recognize the monarch of the United Kingdom as Head of State. Another example is the United States.

Since they do not share a common juridical tradition, the religious systems do not constitute a legal family. The only adhesive feature is the religious or philosophical nature of its law, where law and religion are practically synonyms. In the different systems belonging to this tradition, the applicability of this mixture of conduct rules is restricted to certain subjects, such as in Hindu or Brahmanic law, observed in wide regions of India, or Hebrew law, kept by Orthodox Jewish communities spread through many countries.

However, there are a significant number of countries where the great majority of citizens practice the Islamic religion and effectively share legal culture and tradition; therefore it is possible to attach them to the Islamic family.

These notions are useful when considering the legal framework in a given country and in particular in subsequent sections when considering the role of the judiciary and judicial overview.

Political and Governmental Systems

As is the case with respect to international standards, the legal design, reform, and implementation of an electoral system, cannot disregard the cultural, economic, legal, social, and political reality or context. The application and interpretation of constitutional, legal, and regulatory regimes must agree with the context. This is true whether the system is supranational or regional (European Union or Central American Parliament), national (of each country), state, autonomous, departmental, municipal, cantonal, or of a county.

There is not one unique or perfect electoral model, but different electoral systems used to accomplish the objectives established by the citizenship and political actors as determined at a particular place and time. A system will be adequate when it is consistent with the degree of democratic development of the community in which it is applied or when it is capable of facilitating the community’s transition to democracy or democratic consolidation itself.

System design can provoke certain results, such as an easier construction of majorities or can serve to reflect in a more reliable or proportional way the existence of different political groups. However, the truth is that other factors which are not necessarily derived from technical electoral elements are the ones that can result in the existence of “artificial” or circumstantial majorities. Such influencing factors can include the legislative body size, the correlation of forces among the diverse political parties and the consequent construction of coalitions or alliances, the geographical distribution of the electorate, electoral pacts or agreements, etcetera.

An inclusive and representative democratic model which is politically viable and with high standards of legitimacy, must consider, and even accommodate the different expectations and political ideologies of each of the political actors (citizens, political parties, citizens organizations, pressure groups, etcetera) regardless of the coincidence, convergence, proximity, or even diametrical divergence of their positions in certain topics of the political agenda. Electoral systems are a product of political agreements. They are the way in which the aggregation of political groups’ interests is shown. Those interests shall not be ignored by juridical figures except when they are opposite to the existence of free and fair electoral processes.

The choice of a concrete electoral model (direct or indirect elections), its development (majority system, proportional representation, or either mixed or segmented) and its characteristics or combination of elements (simple, absolute or qualified majority; pure or impure proportional representation; or with a governability clause) must be decisions based on consent or majority. However, not even the majority’s agreement nor wide consent shall exclude minorities’ possibility of representation or voice in the government’s functioning whether in parliaments, congresses or legislative chambers, executive or administrative organs (town or city councils).

In order to prevent electoral systems from becoming theoretical, inefficient or inoperative formulas, political agreement, the social context, and the circumstantial aspects are important and will be further discussed. However, those aspects cannot annihilate or proscribe the principles which inform free and fair electoral processes: the human right of a passive and active vote; the celebration of periodical and authentic elections; universal, secret, and equal suffrage; respect for human rights; neutrality of the electoral administration regarding other State apparatus and political actors; and jurisdictional control of the electoral acts’ application.

Territorial Organization of the State

By design in the creation of countries consideration is given to the notion of decentralization of authority to territorial subunits. This decentralization may apply to the realms of political or judicial authority or division of powers or any combination. Thus, it is possible to distinguish among diverse degrees of decentralization of such power. From the maximum centralization of authorities and power in national bodies, up to the absolute decentralization of them to subnational entities allowing them to create and enforce legal norms within that jurisdiction.

In other words, the spatial applicability of the law is not one. Therefore, depending on the territory, there are several creators and enforcers of the legal rules. Within a country, there are national, local, provincial, departmental, regional, autonomic, and eventually, county bodies with a specific and exclusive competencies which vary from state to state. These competencies might be classified along normative, administrative or jurisdictional lines, valid in the whole territory for certain topics (when national) or just in part of the territory for other topics.

From a lower-higher perspective of decentralization, states can be classified as central or unitary, regional or composed by autonomies, federal, and confederations.

Since the federal state coexists with national, local, state or province, and even county authorities, it represents one of the most defined grades of decentralization of juridical-political power. This coexistence implies that all of the territorial units are elected by the community, autonomous from each other, and entitled to absolutely function within their own jurisdiction. It is about two different delegated branches of government with equal level, on one hand the federal level and, on the other, the local states level. In the first one, there are whole-territory valid rules issued and applied by federal bodies and made for all the people living there. On the other hand, there are local norms created by local bodies always taking into account the federal constitution, which are valid only in some part of the national territory and with a narrow scope of validity.

Power is not just concentrated at the center, but also in the provinces or local states. The territorial subunits have political, normative, administrative and jurisdictional authorities within their own jurisdiction. The distribution or decentralization of political power is consistent with centrifugal theory. This feature does not imply that the State should not be considered as a whole national federal State. Even taking into account the national or federal Constitution, as well as national or federal authorities (legislative, administrative and jurisdictional), there are also local states Constitutions and authorities (legislative, administrative and jurisdictional) which the local states Constitutions and authorities nevertheless have to adjust to the federal Constitution which sets out the principles and fundamentals of the federal or national State. These features appear in most federal States. However, there might be some authorities reserved exclusively to the federal authorities like, for instance, the administration of justice.

Some examples of federal States are Germany, Argentina, Australia, Brazil, the United States of America, Mexico, Nigeria, and Venezuela.

On the other hand, the Regional or Autonomic State is a form of organization of a national State, by which certain public, executive, as well as normative functions correspond to “the depending territorial bodies”. This way, some nations as Belgium, Spain, Portugal, and Italy, have developed regions with constitutionally guaranteed self-government which, from a narrow point of view, does not match the rest of the local States of a federal State, or the territorial subunits of a unitary State.

Through the national Constitution, there are some central authorities in this State, in addition to some secondary authorities. Nevertheless, without implying that this can be considered as the authority to design their own Constitution, there are some other regional, territorial or provincial authorities that also have certain faculties and legislative autonomy. In these cases there is not a representative chamber with the express aim to protect territorial interests nor may these regional authorities participate in the constitutional amendment process, nor have any recognized attributes in the jurisdictional ground.

Due to the monopolization of power as well as the exercise of faculties that characterize some national authorities, within the so-called central or unitary State, political power is completely centralized. Every person is subject to the same and only central or national authorities and thus, they are subject to one constitutional regime and one set of national laws.

However, some degree of decentralization in favor of the local, regional, departmental or county collectivities is not entirely incompatible with the unitary State. Nevertheless, due to the fact that it is the central authority that concedes and supervises the exercise of such power, full autonomy is never reached. Since a national authority accumulates public power, it can be said that it attends to a centripetal theory. Bolivia, Colombia, Ecuador, and France are some examples of unitary States.

There is yet another model of organization of the State: the confederated State which is represented by Switzerland. In these cases, the preservation of freedom, sovereignty and independence of the confederated entities before the national Authority strengthens the level of autonomy. Also, the entities are equal among each other and, therefore, they have the right to separate from the confederated State at any moment.

Furthermore, the confederation of two or more national independent States is aimed to satisfy economic demands from their components. It is regulated basically by international law thorough treaties or agreements like in the paradigmatic case of the European Union. It is based on interstate cooperation and coordination principles, as well as on the integration of communitarian or union and states body of laws. Besides the mainly economic and commercial topics, some other area in which the confederation may take hold are the ones related to the infrastructure and exercise of communication, as well as cultural, scientific and technological assistance and sanitary integration, among others.

Even though there are communitarian and national bodies with diversify competences, the communitarian bodies can issue rules with direct efficacy within the internal national States body of laws. In some other cases, an adoption of some internal acts is required.

In other words, what distinguishes a federal State from a central or autonomic one is the degree of decentralization. And between those and the international association of States, the difference is that the first ones find their legal fundamentals in the national body of laws, while the confederation of States is based on international law.

Since the authorities to be elected, as well as the regulatory legal framework, depend on the model of the State, it is necessary to take into account the diverse forms of organization that can be adopted. Within a federal State, there exist federal (executive body representative or president and legislative body, normally with an upper and a lower chamber), local, and state or provincial authorities. These authorities will be declared through electoral processes ruled, in each case, by different laws appropriate to that authority. The subunits will also contain the institutions in charge of the preparation of the election, as well as some others in charge of resolving electoral disputes both, local and federal, but always with reference to the principles established in the federal Constitution. However, this is no obstacle to necessarily prevent a central body from organizing the elections and a different one, also national, solving electoral process disputes that might arise from the local, federal, and even at the county level.

Central authorities in a unitary State design the legal framework for elections of the national and, if such is the case, departmental and local or provincial authorities. Although there can be some local authorities responsible for the administration of the local electoral process, in a regional or autonomic State, the standards to which the institutions as well as the national and local electoral processes should stick to is established by the national authorities.

Constitutions

The constitutional and legal frameworks are fundamental documents of the state that provide the context and legal environment in which elections take place. The Constitution of any country should both provide the legal framework for that country and serve as the basis for the conduct and delivery of free, fair, credible and legitimate elections.[i]

Subsequent regulations must then be enacted in order to develop the content and application of constitutional rules to the actual conduct of the electoral process.

There are no clear rules to follow in order to know which topics have to be included in the Constitution. Such a decision depends on many different conditions prevailing in every single country. Having said this, some of the topics commonly set down by constitutions are basic rules on the form of government, how representative agencies must be integrated, fundamental rights as well as the legal devices which can be used to protect them, the main principles governing the electoral system, the main features distinguishing voting, the existence of political parties and their internal regime (including topics such as funding, for instance), the existence of electoral authorities and electoral courts, and the kind of procedural rules that have to be followed.

According to the level of complexity of the rules used to reform the Constitution, and even though constitutions are usually intended to last for long periods in order to deliver certainty, rigid systems are nonetheless distinguished from flexible ones.

Some fundamental principles which can be included in the Constitution in order to ensure the undertaking of free, authentic and periodic elections in every country can be listed as follows: the right to vote is universal and has to be used in a free, secret and direct way; elections must be organized by an autonomous public agency or agencies; elections must be undertaken in a legal, independent, impartial and objective way; candidates and political parties must have equal access to the media; finally, every single electoral order has to be judicially reviewed in order to confirm its constitutionality as well as its legality.

A constitution must be seen as the main legal norm of any state, which implies that it is not only mandatory, but has to be enforced and honored as well. Electoral rules set down by constitutions are not an instance of wishful thinking, but are legal norms that have to be obeyed by constitutional and democratic regimes.

Likewise, since the constitution is the highest law within a given legal systems, it validates all the other norms within such legal system. Constitutional rules and constitutional principles cannot be violated or ignored by non-constitutional norms. Any constitutional violation perpetrated by unconstitutional norms is null.

There are all different sorts of electoral authorities. However, constitutionally autonomous institutions have often been established. Such institutions are usually the highest electoral authorities and are completely independent from any traditional branch of government.

The creation of constitutional tribunals is a welcome development. Such tribunals have been empowered to directly interpret and adjudicate constitutional law. Bearing this in mind, since electoral topics have been constitutionally recognized, not only the creation of constitutional tribunals which are specialized to resolve electoral disputes, but also the extension of the powers of traditional constitutional tribunals to do so, seems to be reasonable.

Federal systems work under a double-leveled scheme. On one hand, federal constitutions develop the electoral topics that we have referred to for the federal level. On the other hand, even though states must use their legislative autonomy to enact electoral laws, they must nonetheless follow all electoral principles set down by the federal Constitution.

The inclusion of electoral topics in the Constitution does not mean that a new constitutional document has to be enacted. Such an addition can be undertaken enacting some strategic and specific reforms

Electoral Laws

Constitutions are basic statements of a nation and are often subject to formal deliberation and a significant amendment process. This helps to entrench the bedrock for genuine and periodic democratic elections. However, the relative permanence of a constitution also implies that, “In order to allow for necessary flexibility, provisions related to the management of elections should be incorporated into parliamentary legislation, and administrative and procedural matters should be left to administrative rules and regulations.”[i]

Electoral law is the legal instrument used to develop the majority of electoral topics that are relevant for a nation (especially in the case of those nations following the so-called civil law tradition). Electoral laws are enacted by ordinary legislators (legislative branches of government, chambers, congresses, assemblies, parliaments) in order to develop the general principles established by the Constitution.

Often, since electoral systems have to be legitimate, strong and permanent electoral laws have to be enacted by at least a two-thirds majority of congressional members.

There is neither a model to follow in order to enact electoral laws, nor a recipe to follow regarding their contents and structure. In some countries, for instance, electoral laws are contained in a single piece of legislation (code or statute), while in others, many codes or statutes contain electoral rules in a specific way (in such cases, there are specific codes to regulate electoral authorities, political parties, systems of appeals, and so on).

Whatever the intent to create a single election law, in great likelihood, “An election law neither can nor should contain all regulations relevant to the election process. The election process will require involvement of institutions and procedures that are based on other parts of the national legal system.”[ii] Among other matters, related legislation may be expected to include statues providing for mass communication media, non-governmental organizations, the civil service, refugees and displaced persons, citizenship, military, use of state resource, access to information and civil and criminal codes and procedures.[iii]

Under the Constitution, electoral laws can regulate electoral topics including the following:

Countries that have constitutional tribunals can also authorize electoral laws to be challenged on constitutional grounds. The highest court of the nation will be empowered to decide on such disputes.

Administrative Regulations

Administrative regulations are issued by electoral authorities to regulate specific managerial issues in an agile and simple way. Such regulations are more flexible than legislative procedures.

During elections, a lot of managerial issues have to be solved in an urgent way within short deadlines.

Electoral laws do not have to regulate such topics, which can change from election to election.

Administrative regulations complement electoral laws, and they have to be issued by electoral authorities in charge of undertaking elections from an executive point of view. Electoral authorities empowered to oversee electoral actions have to review the regulatory amendments. There are many electoral structures empowered to undertake such a task. Usually, such structures have to be independent and permanent.In countries with independent electoral authorities, such authorities are empowered to issue administrative regulations. The aim in those countries is to prevent the existence of insufficient regulations. Administrative regulations allow electoral authorities to regulate specific topics such as how political parties have to file their reports, how to handle candidates’ registry, electoral campaigns, electoral advertisement, election day, and so on.

There remains however an advantage where electoral legislation specifically addresses the matter of administrative regulation. Specifying the regulation making power of the electoral authority and defining the circumstances, nature and extent of that authority as well as stipulating publication of regulations and an efficient and timely hearing of complaints are useful inclusions in statute. After all, while there is a place for regulation making in support of electoral legislation there must also be limits so that the electoral authority, “does not act as a substitute legislator.”[i]

Judicial Precedent

Judicial precedents are essential to the integration of the electoral legal system. Such a claim implies a very important change: electoral disputes are no longer solved exclusively by political authorities but also by judicial ones (on one hand, there are some cases in which the resolution of electoral disputes is carried out at the courts; on the other hand, some other cases can be seen as instances of mixed systems in which both political and judicial authorities play a role in solving electoral disputes). Political authorities used to solve electoral disputes by means of political criteria. Now electoral disputes are solved by special electoral courts, which sort out disputes using legal criteria). Electoral litigation has been judicialized and the rulings issued by electoral courts and electoral judges (which can be seen as judicial precedents) have become capital to understand what electoral law is supposed to be.

In common law systems, judicial precedents can be seen as the origin of the law (on the contrary, in civil law systems, enacted law is seen as the origin of the law). According to legal concepts such as stare decisis or ratio decidendi, the reasons supporting previous rulings have to be taken into account to solve new and similar cases. Electoral law is defined not through codes and statutes, but through judicial opinions.

In common law systems, electoral courts are very important. Such courts deliver a fundamental contribution to build-up the legal system. Judicial opinions (seen as judicial precedents) produce the law; electoral judicial opinions (seen as precedents) produce electoral law.

The so-called English system or ordinary litigation system empowers judges at the judicial branch of government to solve electoral disputes in a definitive way. Their definitive resolutions can also have the power to put an end to a sophisticated system of electoral appeals (which can be either administrative or political, as previously explained).

It is clear that for non common law systems (which are usually known as civil law systems), judicial resolutions of electoral disputes are also important. Electoral judges in civil law systems have also made important contributions, which have strengthened and developed electoral law. In those countries, judicial precedents issued by electoral courts have to be used to solve new cases.

Judicial resolutions of electoral disputes are so important that in some cases they also decide on the constitutionality of executive orders issued by electoral authorities. When electoral resolutions do so, they can be seen as constitutional courts delivering constitutional interpretations.

Those who are authorized to establish mandatory precedents are the highest courts. Precedents are established following some formal requirements such being reached through unanimous or composed decisions. Judicial precedents (usually known as jurisprudence) are established through repeating the use of one ratio decidendi to solve more than one case. Such cases have to be similar in order to be solved using the same ratio. The highest courts’ resolutions on opposite judicial opinions, which have been upheld by different courts, are also helpful to establish judicial precedents. Usually, judicial precedents can only be interrupted or revoked by grounded and justified decisions of the highest judges.

How far do judicial precedents and judicial opinions reach? What are their effects? Who are the authorities bound by them? There are restricted legal systems within which judicial opinions and judicial resolutions are constrained to resolve the issues contested in each single case and which are mandatory only for courts and judges. However, there are also legal systems within which judicial opinions and judicial precedents can have general effects (erga omnes) and far reaching powers not only affecting every single authority but also nullifying enacted legislation.

Electoral Authorities Executive Agreements

Electoral authorities are empowered to issue executive orders aimed at regulating electoral issues. International agreements between electoral authorities (whether administrative or judicial) of different countries have been very useful to establish international cooperation and shared academic, publishing or research projects, all of which have been undertaken through high-profile conferences, seminars, congresses, workshops and publications related to electoral topics.

International agreements signed by electoral authorities do not have the same legal status as judicial resolutions. However, they are also important because they do bind the signing countries in a formal way. Once an electoral agreement has been reached, rights and duties are produced and common efforts should be performed to tackle the agreement’s objectives. International agreements (including non-electoral agreements) can be seen as a particular way to create electoral law within a general framework demanding global solutions for global problems.

International agreements must be signed by authorities authorized to do so. They must also be in line with preexisting legal rules. Unconstitutional or illegal agreements are all null and void. Agreements violating the rules set down in other agreements have to be considered null and void as well.

In federal systems, electoral agreements have been reached by authorities of different levels (the federation, the state authorities and the municipalities) and have been useful to solve electoral issues involving them (especially managerial issues) in a cooperative way. Such agreements have benefited electoral know-how and efficiency including the following topics: management, electoral training, the common use of the voters’ registry and voting identification (all of which, expensive, huge and technologically complex matters, are commonly developed by federal electoral agencies and contractually transmitted to local agencies which apply them in local elections).

Codes of Conduct

The expression “codes of conduct” can refer to many different things. Therefore, it is convenient to exclude three instances of such an expression from the outset. Those three instances affect not only electoral agents but also elections’ undertakings and cannot be seen as codes of conduct legally included within electoral processes:

Which are the main features distinguishing a code of electoral conduct? There are at least two:

There are many differences distinguishing the two of them from each other. Such differences are based on their distinctive features and on how strong the obligations derived from them are.

Political parties can draft codes of conduct, which can include international organizations among their signers. Codes can be promoted by electoral authorities.

Codes of conduct promoted by electoral authorities can face a fundamental challenge, which can be put as follows: can codes of conduct be mandatory? From a speculative point of view, codes of conduct have to be voluntary. Some interesting conclusions can be drawn from some studies, though:

A majority of codes of conduct are by consent. They do not present any punishment whatsoever if someone fails to honor them. Such a situation can be considered as integrating the normative dimension of an electoral process. Effective codes of conduct do regulate very important issues and they tend to become mandatory.

A majority of codes of conduct promote cooperation between electoral authorities and usually impose periodical meetings. However, they do not empower electoral authorities to interpret them, nor to execute them.

Creation Strategies

Any country going through a democratic transition has to develop a strategy on its own. Such a strategy can follow one out of two available routes. In the first one, the importance of a new electoral law is fully evaluated as well as the impact of such an option on the legal system. Political parties debate the proposal in order to reach a sound understanding about it.

From a comparative point of view, the most successful cases are those in which a multi-party commission is empowered to draft the new law. A broad consensus opens up the most desirable route to begin the electoral process and the democratic transition.

However, this option has some practical setbacks with respect to the first elections organized at the beginning of the transition period. Some of such setbacks are worth being mentioned:

The second route available would be to adopt a strategy aimed at shortening the legislative process. In such a case, the government usually decides to modify existent laws. Experts are commissioned to work on the matter using international support. This strategy too can face some setbacks, although:

Amendment Process

The chart above illustrates that in order to establish fundamental aspects of genuine and periodic democratic elections; there is an advantage to constitutions and international agreements arising in part from their difficult nature of amendment thereby better enshrining core principles. On the other hand, this same safeguarding function of difficult to amend instruments, can result in very practical problems such as how to keep up with needed change and best practices in a current and systematic manner and how then to ensure that in the course of an election there will be rapid decision making on matters that may be unique to those prevailing circumstances? The degree with which various instruments can be amended is an important consideration in the overall legal framework.

Ideally,” Democratic legislative and regulatory processes present opportunities for individual citizens to review existing legal frameworks and comment on proposed changes, as well as to suggest modifications.”[ii] Similarly for those in the political arena, “Knowing the rules, however, is not enough. The electoral contestants must analyze the legal framework to determine whether the rules actually ensure a genuine chance to compete fairly.”[iii] Academics, media and all manner of civil groups as well have significant interest in how the legal framework for elections is created and amended and so understanding these processes is very important to the health of the overall electoral system. Each source of the legal framework will have its own process and opportunities and challenges to change.

Usually, electoral laws in consolidated democratic systems have a two-fold and inconsistent nature.

Such a situation is consistent with the permanent, technical, minor and procedural changes afflicting electoral laws. Among the reasons supporting the basic continuity of electoral systems, some can be mentioned as follows:

Nonetheless, minor reforms to electoral laws are frequent. Electoral laws in both new democracies and consolidated democratic systems are constantly reformed, constantly adjusted.

Essential Elements

The study of electoral processes can be divided into fifteen similar groups from a legal point of view. These topics cover a broad range including:

Any legal framework design or reform of an existing legal framework for elections should take into consideration the topics listed above. The general design, material activities, contesting groups and individuals, related topics supportive of the electoral process, political finance and dispute resolution are all of critical relevance to the democratic quality of elections.

Electoral System

The Electoral System is an essential component of any legal framework because such a system defines the integration of elected public offices and the relation between the political parties in a country, in a State, or in a group of countries. Among other things, the legal framework should clearly establish the type of electoral system and the regular scheduling of elections.[i]

Broadly speaking, an electoral system can be defined as the regulation of the election of public officials. In a more constrained definition, an electoral system can be seen as the regulation of the relation between voting and the elected officials. Therefore, an electoral system is the way in which votes can be translated into elected representatives, and so their political content is rather clear. Such regulations result in the enactment of very important legislative decisions.

The design of an electoral system, seen in a more restricted way, refers not only to practices of parliamentary systems, but also to practices of both presidential systems and constitutional monarchies. In respect to the election of public officials, the selection of the electoral system is important. If the electoral system follows the majority principle, then the candidates who have more votes than their opponents are declared the winning ones. On the contrary, if the winner is elected in a second round out of the winner of the first round and the runner-up, or if the winner is elected in an indirect way (as it happens in the United States), the results can be quite different.

Besides, electoral systems not only involve the way in which votes are turned into congressional seats, but can also affect other components of the political system (such as the development of a system of political parties, the separation of political ideologies, the representation of diverse social interests, the main features of electoral campaigns, the ability of political regimes to provide individuals with working political institutions, and the political system’s legitimacy). Electoral systems can also be important linking citizens to their leaders (through some mechanisms such as accountability, representation and political liability). As a matter of fact, electoral systems do generate important consequences for democratic governance in the long run. Incentives must be brought along to help out those contending for power to summon voters in different ways, according to the socio-political reality (in societies deeply divided by languages, religious beliefs, racial or ethnic considerations, a specific electoral system can promote and praise cooperation and conciliatory attitudes from candidates and political parties, while punishing those who are neither cooperative, nor conciliatory).

Electoral systems have to be based on Constitutional Law and other Legislation. As we have said, the design of electoral systems determines the ways in which votes are turned into public offices. In other words, such a design determines how voting affects political representation. That’s why an electoral system’s regulation begins at the constitutional level, and continues at the legislative one.

A couple of characteristics distinguish the fundamental components of an electoral system (on the one hand, they affect the way in which votes are turned into political representation; they can be distinguished from others according to the political decisions which outline each one of them). Bearing this in mind, the fundamental components of an electoral system which have to be included in electoral legislation can be listed as follows:

The selection of an electoral system has to be inserted within a legal framework which regulates the social structures and the political differences in an adequate way. Such a regulation must organize a representative political system in charge of solving social disputes through conciliation. It can be said, therefore, that the selection of an electoral system can be undertaken more easily if particular objectives are identified at the outset (a greater degree of legitimacy, for instance, or results’ proportionality, or a strong representation of political groups at a regional level, and so on). Based on such considerations, and taking into account the social, political, geographic and historical conditions of each single country, electoral systems are selected.

The selection of an electoral system is a very relevant decision from an institutional point of view. Such a decision is very important to a satisfactory performance of any democracy. Electoral systems can help out not only to build up specific results, but also to promote the cooperation and conciliation of divided societies.

The selection process of an electoral system supports the electoral legal framework. The application of a specific electoral system in each country can have a relevant impact in the electoral performances of political contenders. The evaluation of a country’s electoral system can be based on the results rendered by previous elections. Doing so can shed some light on important issues such as what benefits, if any, are received by the political party in power if compared to other political parties. Some light can also be shed upon the system’s components which can be seen as distorting international regulations or the election’s results.

No electoral system can be universally applied to all the cases. Nor can a universal norm be applied to all cases. The selection of an electoral system has to aim at clear objectives, and has to be seen as an ad hoc decision in the relevant circumstances. The effects derived from the operation of electoral systems are contextual and are based on political and territorial particularities, as well as on different social realities and specific conflicts which differ from one country to the other. The general consequences of every single electoral system depend on contextual conditions distinguishing each single case. Democracy Reporting International and The Carter Center, in Strengthening International Law to Support Genuine Elections and Democratic Governance, conclude,”International law recognizes the need for an electoral system, but does not advocate or proscribe a particular system. Rather, all electoral systems are permissible as long as they uphold fundamental rights and freedoms and international obligations.”[ii]

Electoral systems are generally categorized in relation to how votes cast result in the election of representatives. According to this continuum there are at least three main classes of electoral systems (it should also be recognized that there are other ways to organize electoral systems with greater specificity resulting in a broader number of classes). The Handbook for European Union Election Observation distinguishes:

It follows that each system will have a different impact on the translation of votes into representation. For example, and speaking very broadly:

although the simple majority system can result in election without a majority of votes the system is reputed to entrench the accountability of the representative to the community; although proportional representation systems tend to result in a better reflection of the actual vote it is reported to diminish the accountability of the representative to the community in favour of the political party; by definition the mixed system will represent some of the best and worst aspects of each system and so on.[iv]

The revision of an electoral system has to take into account whether the country is deeply divided or not from a political, geographical, religious, or ethnic points of view. It has also to take into account whether political minorities are fairly represented in the political system. The revision of an electoral system aimed at improving a country’s electoral regime, has to take into account the recommendations derived from the experiences undertaken by other countries on how inequalities can to be solved.

Electoral Management

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:

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:

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]

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.

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 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:

• 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.

Electoral Boundary Redistribution

Electoral territories have to be defined in order to be studied from a legal point of view. An electoral territory is, thus, a territorial unit in which voting defines how congressional seats will be distributed among candidates or political parties.

The boundaries of electoral territories are not equally important for all electoral systems. For some of them, distributing congressional seats can be seen as a very important and debated political decision. In many countries turning votes into congressional seats can bring along very dramatic changes for the political balances of a nation.

A legal framework has to prevent any kind of manipulation or gerrymandering from being adopted within an electoral system’s design. Every single vote has to be as valuable as any other.

Legal frameworks have to organize the way in which electoral districts will be outlined and defined. Electoral districts have to be seen as supporting political representation and have to be modified once and again in order to match political and social realities. Legal frameworks have to answer some important questions, which can be put as follows: how often and under which circumstances electoral districts’ boundaries have to be redesigned; which will be the participation of both traditional branches of government and autonomous institutions in doing so; who will have the final word about it.

There are different ways to set boundaries between electoral districts. Since such an activity can be seen as very significant from a political point of view, many countries exclude non-independent electoral authorities from such a task. Usually the whole process is vested in an especial commission which is helped out by the electoral authorities from a technical point of view. Especial commissions are integrated in many different ways: they can include political parties, non-partisan citizens, experts such as demographists.

An electoral system will generally aim at turning the public will of voters into a representative government. Therefore, setting boundaries for each single electoral district can produce different results in different countries, even though basic principles always have to be followed. According to international standards, every single vote has to be as valuable as any other in order to elect an effective representation.

Now, setting boundaries is not solved in an identical way by all countries. However, there are three universal principles which guide such an activity everywhere. Such principles can be listed as follows: representation, equal consideration of votes, reciprocity and anti-discrimination.

Boundaries bringing apart electoral districts have to be set in a way in which, at the end, voters see elected candidates as legitimate winners of the race. Usually, such a requirement means that electoral districts have to match interest communities, i.e, governmental regions, ethnic communities, racial communities, geographic zones (such as islands) limited by natural borders.

From a structural point of view, setting boundaries for electoral districts is supported by a universal constitutional command: each person's vote is as valuable as any other’s. Such a constitutional command turns every single vote into a definitive one in order to compose representative organs. Such principles can not be constrained by territorial considerations; on the contrary, each single electoral district must be represented by as many representatives as its population makes it necessary (proportional representation) or by as many representatives as any other electoral district is represented (direct representation).

Boundaries for electoral districts must be set down using legal and clear procedures. Here the rules have to provide us with as much certainty as possible.

Setting down electoral districts will have managerial consequences as well. Such consequences will have to be met by electoral authorities in charge of electoral management because they will have to adapt their structures to match electoral territories.

It is also important to highlight that, once specific electoral districts have been implemented, such territorial units are not eternally fixated. Demographics will always demand a permanent revision of electoral districts.

Voter Registration

The right to vote must be seen as the right to participate in public affairs in a direct way. Free and fair elections can not be undertaken without the proper verification that voters fulfill the legal requirements to vote.. Voter registers must be seen as catalogues of citizens who have a right to vote. Therefore, voter registers are fundamental for any voting system, and for any electoral legal system. Usually all the requirements that have to be met by citizens are established in the Constitution. Electoral laws have to regulate, design, and update such requirements (which have to be non-discriminatory). All the procedures related to the voter’s registration have to be complete and inclusive.

Bearing this in mind, voter registers generate certainty and security and have, therefore, a key role in establishing and consolidating a democratic regime. As well, voter registers can promote more enthusiastic participation of citizens within electoral processes. There is a general trend towards a more sophisticated development of voter registers from a technical point of view. Such a trend has to be consolidated by electoral officials and political parties working together in order to generate public participation campaigns aimed at all the people.

However, a voters register is not only important but also very expensive. The registration of voters and the production of voters’ lists usually represent 50% of the electoral expenditures as a whole. There are many different things that affect such expenditures, among which the kind of system used to register voters, the design of electoral identification, the managerial abilities of electoral authorities, and the social, economic, and demographic characteristics in each single country are important in order to achieve a sound balance between the costs and the efficiency of voters registers.

In order to achieve such objectives, there are many different kinds of electoral registrars. They can be grouped once questions as follows have been answered: Is voting mandatory? What kind of electoral authority is in charge? Registers can be mandatory, voluntary, centralized, de-centralized, permanent, non-permanent, independent or dependent of higher electoral authorities who are in charge of both creation and updating of the voter register. Among such higher authorities are electoral authorities, demographic registrars, civil registrars, and so on.

Registration Procedures

Citizens have to fulfill another requirement to vote: they have to be registered in the electoral register. Such a requirement is fundamental. The electoral register is a catalogue within which citizens entitled to vote are included. The inclusion of citizens in such a register implies that citizens have met other requirements and are residents of a valid electoral territory.

Depriving a qualified voter from being included in the voter register is equivalent to denying the fundamental right of suffrage, therefore the, “international standard for voter registration is that the register must be comprehensive, inclusive, accurate and up to date, and the process must be fully transparent.”[i] Electoral laws have to establish adequate and simple mechanisms aimed at promoting the inclusion of qualified voters in the voter register. As has been said, electoral registries play a fundamental role in generating trust among citizens. Equally, the voter register must safeguard against the improper inclusion of persons not qualified or the multiple inclusion of qualified voters. However creating and maintaining a voter registry is by no means an easy task as, “Establishing and maintaining accurate voter registers at the national level, or voter lists at the regional or local level, can be one of the most difficult and, sometimes, the most controversial elements of an election process.”[ii]

There are two basic classes of voter registers: “Active, or affirmative, registration systems require individuals to apply to be registered as voters. In passive systems the voter register is compiled automatically on the basis of residency or citizenship registers, or some other form of record.”[iii] Sometimes voter registers are compiled through a combination of these approaches. “Active” registration systems place the emphasis on the voter and so informing and motivating voters to register is a necessary adjunct. In general, “are somewhat more likely to exclude ineligible persons, such as those who have died or those who have permanently emigrated from the country.”[iv] Passive or state initiated systems may take the form of drawing a voter register from other government records such as a national registry or may be compiled exclusively for an election by a door to door enumeration, or by a combination of both. The success of this approach is directly impacted by the reliability and currency of national records in the case the voter register is drawn down or compiled from existing records. In general, comprehensive active systems, “are more likely to ensure that all eligible voters are registered, though they do not guarantee that more of these constituents will actually turn out to vote.”[v]

In either case, the resulting voter register should be made public so that voters and political representatives alike may review the register to ensure that qualified voters are included (and included only once) and unqualified persons are not included. The notion of transparency of the register of voters is critical in the same way as accuracy is critical. It follows that the legal framework needs to clearly establish the processes by which the voter register may then be revised and that process as well must remain transparent. In doing so, the legal framework must specify, “sufficient time for eligible voters to register, for public inspection of the voters’ roll, for objections and for the adjudication of appeals.”[vi]

Some countries as well permit registration of voters on early voting days and election day. Additions to the voter register at the voting place require establishing the qualifications of the voter to vote and in that particular electoral district. Additions to the voter register at voting places need to be tracked carefully to avoid the potential for double voting.

In a typical situations such as an immediate post conflict situation where records are simply not available, there may not even be a voter register and instead voters would present themselves on election day and establish their identity and qualifications right at the voting station. In such cases, the risk of multiple voting necessarily increases and so other security features such as dipping a finger of the voter in indelible ink is often introduced.

In whatever manner voter information is collected for the register, that information should be limited to what is required to establish the qualification to vote and the legal framework should specify that other than purposes related to the conduct of the election that the information shall not be used for unauthorized purposes. The legal framework should specify if there are any other valid purposes for which the list may be used, for example for campaigning by candidates or for citizen contact by the elected members.Often voter registries are maintained centrally on the national level, however, in federal states it is often the case that regional and local authorities will maintain registries as well for their own purposes or may contribute to the national registry.

Whatever the nature of the voter register and the jurisdictional relationships involved, the responsibility for the accuracy of the voter registers lies with a local or central state authority or electoral management body, “must ensure that voter registers are maintained in an accurate and transparent manner.”[vii] The stakes are high because,” Inaccurate voter registers can disenfranchise voters, undermine public confidence in election results, and create opportunities for manipulation or fraud.”[viii]

Political Parties and Candidates

A fundamental characteristic of the electoral legal framework is how it regulates the activities of political parties and candidates.

Political Parties can participate either on their own or associated with others. Sometimes candidates contest elections as “independent”, that is, without party affiliation. Some countries authorize the existence of other political organizations including associations of individuals to participate in the election either on their own or in partnership with traditional political parties (as happens in Mexico). However, for a democracy based on the existence of political parties, the role played by parties and their relations with other organizations are fundamental.

The regulation of the activities of political parties and candidates within an electoral process, especially in respect to the selection of candidates and electoral campaigns, is fundamental. To begin, electoral laws must establish who is authorized to run, under which conditions and how authorization is established. Usually, such topics are regulated by the Constitution (the fundamental right to vote is involved). However, in some countries the fundamental rules are established by law. The important thing, however, is to highlight that every aspect of political organizations and political parties has to be addressed. Such a regulation has to be detailed in order to include the funding regime, the rights and privileges of members, the relations between the organizations and the candidates, and electoral participation, among other things.

Political Parties and Other Organizations

Broadly speaking, a political organization is an institutional expression of a particular ideology of a people, or an institutional expression of some political interests of some social groups. Such an ideology is related to specific public affairs of general interest and can affect both politics and governments.

Every single political organization is derived from a particular reality and it is expressed through subjective and objective devices. Structural topics can be seen as subjective devices, while normative realities understood as objective ones.

Objective devices have a more important role to play to build-up a legal framework. Objective devices will affect the society in which they exist as long as they are publicly recognized, regulated, and funded.

The foundation of political organizations is derived from specific rules and general principles aimed at ensuring the achievement of general objectives derived from the law or from decisions made by such organizations on their own.

As a matter of fact, political organizations are not capable to ensure a permanent existence on their own. That is the reason why their aims, objectives, powers and legal existence have to be legally established. Without a legal support, political organizations’ existence would be unstable, anarchic, and disordered.

Besides, a legal system has to recognize that internal regulations applied to political organizations and which affect their structure, relations, composition, scope of action, discipline, and other topics, must be enacted and applied by members of the organizations. A legal system has to recognize the organization’s right to self-determination.

The activity of political organizations has to be limited by specific rules, i.e., such activity has to be regulated and oriented by established rules and procedures which are derived from the legal system within which political organizations exist.

Political organizations neither have the same origin, nor the same compositor. Political organizations do not have identical objectives. That is the reason why a legal framework has to distinguish and constrain their independent activities. In what follows (Political parties, Coalitions, and Other political organizations) the more important types of political organizations that have to be addressed in law will be detailed.

Political Parties

Political parties in representative democracies are so important that democratic states are often described as "party states". Among the most important functions of political parties are:

Given the critical role of political parties in pluralistic electoral systems,” The legal framework should ensure that all political parties and candidates are able to compete in elections on the basis of equal treatment before the law.”[i]

For the purpose of this topic, attention will be directed to the fundamental elements of the legal framework governing political parties that are related to their participation in the electoral process. The level of political party involvement in the electoral process varies according to the electoral system and the level of election. In parliamentary elections, political parties often have a near monopoly over the candidate nomination and in most cases the fact that a list is supported by a political party is crucial for the identification. In presidential elections, focus is obviously placed on candidates but their party affiliation usually plays an important role.

Political parties can also be defined as voluntary groups of citizens formed with the aim of contributing to the determination of State policy (or at the respective territorial level) through the shaping of citizens’ political will, the nomination and support of candidates, the development of political programs and any other activity oriented towards the achievement of these goals.

International law (Article 22 of the ICCPR), “guarantees the right to freedom of association, which includes the right to establish and operate political parties.”[ii] The establishment and functioning of political parties in a democratic state should be free, but they may be subject to certain typical requirements (such as the elaboration and submission of party statutes to a public registry or to the electoral authority) and substantial requirements, such as the obligation to conform to democratic principles respecting the Constitution, the laws and the democratic system.

Special requirements may also be imposed on political parties when some of their activities are funded or subsidized by the State and considering the fact that political parties are a vehicle for access to elected office. Certain legal orders have also created mechanisms to ensure that the structure and operation of political parties are democratic. However, “Any limitations to the rights to freedom of association, expression and assembly must be prescribed by law and necessary in a democratic society.”[iii] As such, it is up to the legal framework to protect against undue restrictions and to entrench due process to ensure that restrictions are not applied in an arbitrary fashion.[iv]

Political parties may have very different structures. In contemporary democratic systems, there are two main types of political parties: small parties marked by liberal ideas that originate from the French and American revolutions and big labor parties that have emerged since the second half of the nineteenth century.

Participation in democratic elections should be open to all political parties that share democratic values and incorporate democratic rules with regard to both their internal functioning and objectives and external functioning. Faithfulness to the democratic system should not be conceived, however, as absolute acceptance of existing laws and policies. Nothing prevents political parties from advocating for legal or constitutional reforms, provided that they respect the valid procedures prescribed by law on access to government or legal and constitutional reforms.

Most systems impose certain minimum requirements for the recognition of political parties. In general, these requirements aim to ensure a minimum standard of publication of the establishment of political parties through registration in a public record or other similar publication depending on the country, and to determine the democratic nature of their internal and external functioning.

Political parties are usually registered in a public register under the authority of the administrative or electoral authorities. In a pluralistic system, this should be a formal requirement aiming to prevent a situation where the name or symbol of a new party is confused with the name or symbol of any previously registered party. In addition, political parties should submit their statutes which should prove that the party pursues lawful purposes through democratic means and democratic internal procedures.

However, the purpose of registration must not be to limit or put up barriers to the registration of political parties; “A genuine election requires an open and inclusive registration process for political parties and candidates from across the political spectrum, contributing to presentation of a real choice to the electorate.”[v] For example, registration is often accompanied by the requirement of a monetary deposit and/or the collection of signatures in support of the application. If a monetary deposit is required it should be justifiable and of a reasonable amount and the deposit should be returned on fulfilling clearly set out criteria such as receiving a given percentage of the vote. In the case of signatures, an application should not be dismissed because a certain number or percentage of invalid signatures but rather the party should be permitted to submit additional valid signatures of support.[vi]

Neither should de-registration be taken lightly. In order to respect the fundamental rights of association, expression and assembly and to avoid speculation and abuse, a review of party registration should be restricted to only those cases of serious violations of the law and under clear and processes.[vii]

There is a constant debate regarding the extent of the restrictions that a democratic system should impose on the functioning of associations and political parties that advocate against the democratic system. There are, of course, different solutions which must take into account the powers and the roots of each system. Nevertheless, it is essential to ensure the application of the rule of law and democratic principles. This cannot be achieved by imposing restrictions on the freedom of expression, but by regulating the exercise of organized political activities related to electoral competition. In some countries, such as Mexico, the provisions regarding political parties are included not only in the legislation but also in the Constitution, given the great importance of their role in the political life.

When party systems and democracies have reached a certain level of maturity, stricter requirements are imposed with regard to the internal functioning of the political groups seeking access to government or to other elected offices. Thus, it is usually required that the internal functioning of political parties is governed by open and transparent rules. The most common requirement is that the leaders and the program of each political party are selected on the basis of democratic procedures open to all party members. This situation most often arises in mature party systems where there are well-established political parties able to implement these principles. Certainly, the election of party leaders is largely determined by the candidates’ popularity and leadership skills. Nevertheless, regardless of the factors that determine the decision of party members, they should be given the opportunity to make a democratic decision which includes the possibility to seek redress through the judiciary or other independent monitoring bodies in case their rights have not been respected. As regards the external activities of political parties, there are two aspects that should be regulated; the instruments used in their general political action and the specific requirements and rules of conduct that govern their participation in the different electoral processes.

The financing of political parties consists of the economic resources at the disposal of the party and for the achievement of their mission as set or regulated in the law. In certain countries, such as most Latin American countries, the regulation of political party funding has constitutional status. Codes or specific laws governing political party financing form a complementary legal framework providing for controls and prohibitions. Party financing can be divided in two main categories: funding related to the parties’ maintenance, which is used to cover their regular expenses, and funding in relation to the electoral processes, which is used to cover the expenses of their election campaign. Political financing is considered in more depth in a subsequent section.

Alliances of Political Parties

Political parties can establish collaboration agreements on a wide variety of issues, including; joint participation in elections, joint government formation after the elections, offering external support to an existing government joining forces with several parties to overturn another party, to modify elements of the political system or to jointly determine specific policies. In this framework, it is interesting to examine the features of political alliances in view of an electoral process. Alliances between parties can take very different forms and degrees.

First of all, political parties can form coalitions, whose lists include candidates from each political party or are independent, identifying themselves as a coalition and no longer representing themselves independently in the constituencies affected by the coalition.

Another option is to alternatively submit lists of either of the parties in each constituency, in order to optimize the expected electoral support for each party. This is common practice in mature party systems, thus ensuring maximum effectiveness of their campaigns and prevention of the negative effects of vote dispersion on themselves or on the parties from which they can expect certain support or co-operation.

Finally, they can agree on the withdrawal of the candidacy which has received the least votes in the first round and request their voters to support the candidacy of the allied party.

These agreements can be applied to different areas; to all the constituencies or only to some, to presidential, general or municipal elections or for a given or undetermined period.

The legal effects of these agreements are generally limited consistent with the freedom that should govern the strategic and political actions of the parties in a democratic system.

As a rule, however, coalitions formed for a particular electoral process and registered as such at the time of the nomination do produce legal effects. These effects are basically related to two aspects of the process; relevant state contributions and the prohibition on the nomination of candidates independently by the groups forming the coalition. Further, there may be a higher electoral barrier than the one applying to individual parties in some Eastern European countries, such as Croatia or the Czech Republic.

On the other hand, agreements on the withdrawal of candidatures that received the least number of votes, and even more so, agreements concerning post-electoral conduct of elected parties or candidates have only political importance and parties or representatives cannot be forced to comply with them.

Other Political Organizations

To broaden the channels of political participation and representation and to complement the political party system, some legal orders provide for alternative types of political organizations, such as associations that contribute to the development of the democratic and political culture.

The objective of these organizations is not necessarily to participate in the electoral process, although some jurisdictions provide this possibility, but can be to lay the groundwork for the formation of political parties, or even to function as channels for the accomplishment of political tasks and the free expression of political ideas.

The legal framework should provide as well for these organizations to be ensured the right to be established and to participate and compete in the political process on the basis of equitable treatment before the law.[i]

Candidates

Candidates constitute an essential element of elections. Hence, it is very important that this matter be regulated in the constitution and, in more detail, in the legislation. The requirements to be a candidate are directly linked with the exercise of fundamental rights, the right to elect and be elected. Putting forward candidates enables voters to choose and, at the same time, it permits citizens interested in access to elected office to be elected. The candidate constitutes a political offer on which voters can pronounce.

The regulation of candidates should deal mainly with issues concerning the requirements for nomination for election. It should also determine who is entitled to nominate candidates, that is to say, whether this right is only reserved for political parties or is extended to other political organizations, groups of citizens, social movements or individuals as independent candidates. Furthermore, the legal framework for candidates should provide for gender equality with regard to nomination and specify the registration procedure and campaign requirements before the competent authority.

Depending on the electoral system, voters are faced with different types of choice regarding candidates, as there is the possibility of ranked choice voting, preferential vote or gradual elimination, voting for individual candidates or voting for candidates included in a party a list.

Overall, the form in which candidates appear on the ballot affects the outcome of the vote. The basic distinction between the various forms of ballots is between the nominal ballot and the party list ballot. In the case of nominal ballots, seats are allocated according to the votes obtained by a specific candidate, while in the case of party lists the decisive factor for translating votes into seats is the sum of votes obtained by each list or by the total of candidates included in each party list.

Qualifications

The right to be elected is, “clearly established in international law. However, these rights are subject to reasonable restrictions.”[i] In turn, the obligation of the legal framework is to, “ensure that all eligible citizens are guaranteed the right to universal and equal suffrage as well as the right to contest elections without any discrimination.”[ii] However, it is key to understand the word “eligible” in this context because just as international law and legal frameworks guarantee such inviolable rights, it remains permissible to apply reasonable limits with respect to candidate qualifications just as is the case with regard to voter qualifications. The reverse remains true as well; that it remains unacceptable to apply discriminatory and unreasonable limits on such basic human rights.

Inclusiveness is a key principle when considering the qualifications and nomination of candidates. Failure to apply the principle of inclusiveness results not only in the abridgement of the rights of those wanting to stand for election but also the choice of candidates presented to voters.[iii]

The eligibility requirements for candidates are not always the same as the eligibility requirements for voters. Although the right to stand for election has historically evolved in line with the right to vote, there are some differences that make the first subject to more restrictions. Consequently, eligible voters are not always eligible to stand for election.

In the same sense, those willing to stand for elections do not necessarily manage to be amongst the final nominated candidates.

As a starting point, it can be stated that according to the democratic principles, the eligibility criteria for candidates include at least the same criteria required to be a voter: citizenship, adulthood and full possession of civil and political rights. Any further requirement for candidacy must be explicitly mentioned in the Constitution or in the law and sufficiently justified by constitutional principles that permit the limitation of fundamental rights of certain categories of citizens.

Most systems establish special candidacy requirements or set up certain restrictions due to various reasons:

Finally, in systems where political parties have the monopoly on the nomination of candidates, candidates must be nominated by a political party.Unreasonable and discriminatory restrictions on the right to stand for office are, however, not permissible. For example, there may be no discrimination of an otherwise qualified citizen to contest an elections, “on the basis of race, colour, sex, language, religion, political or other opinion, association with a national minority, property, birth or other status.”[iv] In the view of the HRC in Bwalya v. Zambia, single party electoral systems are also to be added to the list of unreasonable restrictions.[v]

Independent Candidates

Since under international law no one may be compelled to join a political association[i], “Unless the electoral system is restricted to parties or party lists, individuals should not be precluded from being nominated as independent or unaffiliated candidates.”[ii]

However, in practical terms the possibility of independent candidates’ participation in electoral processes is quite limited in most parliamentary systems. These systems consider that in elections, at least at the national level, only parties can truly compete. This is often especially the case where only parties have the right to receive public funding.

Independent candidates and groups of non-affiliated candidates often have so limited practical and legal possibilities to participate in elections that their role in modern democracies is marginal. The following restriction can be identified:

Article 220 (4) of the Spanish electoral law is illustrative of the requirement of a certain number of signatures. In practice, the signature requirement is eliminated for political parties given that the 15,000 signatures required for the nomination of candidates can be replaced with the signatures of 50 elected officials at any level, even municipal. In this case, groups of non-affiliated candidates that usually do not have the possibility to be supported by 50 elected officials, must present 15,000 signatures. In addition, the possibilities for independent candidates to run big electoral campaigns are generally very limited unless they have their own significant financial resources (think of the case of Ross Perot, who largely self-financed two successive U.S. Presidential election campaigns. Indeed, the second time he obtained a reduced number of votes, partly because he was also excluded from access to the Presidential media debates).

Elections of a limited scope, such as local elections, where independent candidates or groups of non-affiliated candidates can compete with limited means constitute an exception to this rule.

On the contrary, in presidential systems, usually more emphasis is placed on the personality of the candidate. As a result, the role of political parties in the nomination of candidates is less important. This is a consequence of the different distribution of powers between a directly elected president and members of the Chambers who are affiliated with a party. In these cases, the nomination by a political party is not always sufficient but there is often a requirement of a certain number of signatures from citizens.

Another aspect that should be considered when establishing the possibility for nominations of independent candidates and the accompanying registration requirements is the principle of equality, and that the registration requirements must not discourage participation. At the same time, regulation should generally provide mechanisms that discourage the scattering of votes and the attendant deterioration of the party system.

Registration Process

Individuals having the right to participate as candidates in an election (because they fulfill the eligibility criteria and have met certain additional requirements) must formally notify the electoral authority. It is then up to the electoral authority to assess the acceptance or otherwise of candidate registration and announce the names of candidates for the election.

Registration with the electoral authority and the declaration of the officially nominated candidates serves multiple functions:

As a rule, those who wish to stand for elections are required to fulfill certain criteria besides having the right to stand for election. The purpose of these criteria is to ensure that candidacies are serious and to prevent an unlimited number of applications without satisfying minimum requirements to compete in the election, which would only create perplexity and require additional public resources.

a. Presentation of Candidates

Although various possibilities exist in different legal frameworks, usually candidates are presented and supported by political parties.

The prevalence of candidate association with political parties is due to reasons inherent to representative democracy, which not only aim at the fair representation of citizens, but also at the formation of majorities with enough electoral support to allow sufficiently stable governments. Political parties respond to this need as they allow the integration of candidates and have the means for political support above the constituency level.

The dominant role of political parties is not without criticism, most commonly in consolidated democratic systems. Identified problems related to political parties include: excessive influence or power of internal structures or mechanisms; professionalization of those engaged in political activities, thus hindering the emergence of alternatives; that sometimes political parties focus on the single minded defense of their partisan interests; a growing gap between politicians and ordinary citizens, etc. However, these critiques should not obscure the irreplaceable role of political parties. Rather, the dysfunctions of political parties should be resolved in favor of the democratic system. In a democratic and open society, a political party experiencing any such dysfunctions faces a dilemma; either is it able to evolve and resolve these problems or public criticism will gradually undermine the credibility and perhaps even the legitimacy of the party. Furthermore, opposition parties would become stronger or, in the absence of a satisfactory alternative, abstention would increase until the emergence of new political parties or political groups to replace of dominate those resistant to change.

In addition to political parties, it may be possible for a candidate to be nominated by coalitions or groups of parties resulting in different formalities and requirements in different countries. Contrary to what happens with post-electoral alliances, coalitions and alliances formed prior to an election may have legal effects, for example, the ability to prohibit parties that comprise the alliance from presenting their own lists of candidates in the same electoral constituencies.

The presentation of candidates who are independent from political parties or coalitions is a third possibility. However, the degree of difficulty in doing so increases in proportion to the level of the election and the size of the constituency because of the greater complexity of preparatory activities and the financial resources needed for the conduct of such campaigns. With this in mind, the presentation of independent candidates is easier in small constituencies or in regional elections, for instance at a municipal level.

It is certainly easier and more usual for independent candidates to compete in local elections or in small constituencies. Exceptions to this rule usually show that only exceptional economic resources (such as in the case of Ross Perot running as an Independent candidate for the US Presidency) or highly visible prior expertise (such as in the case of Vargas Llosa in Peru) allow independent candidates to cross the barrier and gain voters’ preference in competition with candidates included in party lists.

b. Selection of Candidates

The way candidates are selected in political parties is a very important issue in a representative system. The constitutional role of parties obliges them to respect stricter internal democratic rules than those governing other types of associations. This aims to ensure that political parties have democratic internal procedures, without prejudice to the elements of leadership (including charisma) that are essentially present within political organizations. These requirements may be set by different acts, depending on the historical and political circumstances of each country. Nevertheless, in certain contexts it has been observed as well that, “The selection of candidates at party level is not always democratic.”[i]

One of the methods aiming to limit the undue influence of internal party mechanisms is the selection of candidates for the various elected offices through internal elections, either limited to members of the local department of each party or open to citizens voluntarily registered as supporters of that party. These two procedures for internal elections are, however, entirely different. The democratic election of candidates by party members can ensure a certain level of transparency and promote open discussion on nominations. However, in reality, it is only a guarantee of internal democratic participation open only to party members which therefore leaves the nomination of candidates up to the parties. The second procedure allows greater and broader participation given that it includes citizens at large who support a political party and registering as such in an ad hoc register.

Open nomination of candidates by party supporters is usually favorably assessed by citizens of countries where the nomination of candidates is still a monopoly of the party structure, even though party leaders are rarely in favor of this selection procedure.

In most cases the role of political parties is simply critical as they, “often control decisions about who will be nominated to run for office, what positions candidates will be given on party lists, and who will receive support during the campaign and after the election.”[ii]

c. Formalization of Applications

The formalization of candidates’ applications must be carried out objectively: the purpose is to verify whether candidates fulfill the eligibility criteria and once confirmed their names should be formally announced without delay. Any fraudulent act aiming at limiting the number of candidates or impeding any of the eligible candidates must be prevented. It is important for fairness and confidence that the registration process is accessible and transparent and that timelines allow reasonable time for candidates to complete the requirements.[iii]

The application must include the individual’s name and proof of identity, nationality, age and enrollment in the voter register. The non-existence of disqualification requirements (not having been deprived of the right to vote and not satisfying any of the ineligibility criteria) may be proved with a certificate of the relevant public authorities (for example, a negative criminal record certificate) or even a formal statement and declaration by the candidate.

The above requirements should be justified by the legal framework of each country. Thus, in order to justify age or nationality requirements, an identity card, passport, civil registry or any other means of proof of identity shall be sufficient.

In the absence of these documents, the legislative framework should allow proof by other effective means. Official documents issued in the country (driving licenses, census or municipal records, etc.) that provide sufficient proof should be preferred rather than establishing new systems of documentation or verification that can delay the electoral process and increase the cost.

It is common that the legal framework may require support of the nomination of a candidate in the form of either the collection of signatures in support of the nomination or a financial deposit or potentially both. It is important that in setting such criteria should be set at reasonable limits so as not to impose a barrier to the right to run as a candidate. It is also crucial that any conditions are applied equally among all candidates and not in a discriminatory fashion.[iv]

The legal framework must also allow the correction of formal errors or omissions within the short but nonetheless reasonable deadlines that characterize the preparatory phase of the electoral process.

A brief deadline for registration of candidates and a requirement to demonstrate that the candidate meets all the requirements should not be considered unfair provided that this deadline does not lead to discrimination of any kind. Electoral processes often require that numerous tasks are completed within short deadlines in order that election periods not become excessively long.

The names and symbols used by a list of candidates (initials, emblems or representative signs) are very important for their identification and recognition by potential voters. Hence the misuse of a name by another political group running for elections or use of a name so similar that can mislead the public must be prevented.

As a rule, a list of candidates presented by a political party should bear the name of the party unless the party is part of a coalition identified by another name. The use of ambiguous names shall not be prevented for ideological reasons but rather for reasons of identification: the electoral authority should not assess the possible ideological confusion between two candidates but should ensure that each candidate can be clearly identified by his/her name and symbol without possible graphic, phonetic or other confusion.

d. Control and Objections

The control of compliance with the procedural and substantive requirements shall be vested in the election authorities. It must be carried out according to criteria that do not hinder participation in the electoral process and facilitate the correction of material errors. This pre-electoral procedure allows the reduction of errors that later cannot be corrected, in order to facilitate participation and prevent election results possibly being cancelled because of rigid or excessive formal legal provisions or technicalities. The law must clearly set deadlines for the presentation of candidates, the eligibility control and the declaration of registered candidates by the electoral authorities, including with brief deadlines, if necessary, to resolve material errors. Candidates should be afforded a fair opportunity and time to correct deficiencies because only the most serious grounds should result in the disqualification of a candidate.[v] After these deadlines have expired, the election administration should publicly announce the names of the candidates that meet all the requirements to participate in the electoral process. The final list of candidates is usually published in the official journal but other publication means can also be used, such as publication of the candidates’ names on the press or in public places, etc.

Candidates and all interested parties should have the possibility to lodge an appeal against a decision of the electoral administration regarding the rejection or declaration of a candidacy not only before the electoral administration itself but also before the judicial authority (either ordinary or specialized courts or other competent independent bodies such as a Constitutional Court).

e. Proclamation and Publication

Official and public notice should be made of the names of the candidates that will participate in the election. A list with the candidates’ names is usually published on the official journal, on election authority websites, etc. After the resolution of any appeals regarding the validity of candidacies or the expiration of the deadline to lodge an appeal, the proclamation of candidates has the following effects:

Voting Operations

This section examines the different aspects related to the organization of voting operations, such as ballot content and design, voting stations establishment, staffing and keeping order and the maintenance of secrecy of voting and special voting procedures.

The procedural conduct of an election involves the integration of numerous widespread processes. For instance, the 2009 general election in India (15th Lok Sabha) was an operation in which over 716 million electors were eligible to vote in nearly 835,000 polling stations. Voters in the 543 constituencies had an opportunity in total to choose from amongst over 8,000 candidates. Almost 4.7 million polling staff were deployed. National voter turnout was 58% and the final results were available in a matter of several days.[i]

Although the organization of an election rarely reaches this scale, it is always a complex and delicate operation. The electoral administration should be able to use the necessary means so that for all citizens the vote is safeguarded. Regardless of the scale of an election, elections organizations must ensure that voting places are well staffed with trained personnel and that all the materials are on site and in sufficient quantity as,”Inadequate voting supplies effectively undermine the right to vote.”[ii]

Voting operations are at the heart of voter interaction with the electoral process and as such can impact participation and confidence:

Increasing popular participation in the electoral process is an important way of strengthening democracy. This can only be achieved if the public has confidence in the electoral process and if it is accessible to them. Lack of confidence and limited access may lead to voter apathy, as reflected in the generally poor voter turnout evident in some countries.[iii]

The rules governing voting operations and vote counting at polling stations are usually thorough and detailed. They try to cover every possible situation and to set out clear and precise guidelines that facilitate the solution of possible problems.

However, these rules should also be clearly understandable for ordinary citizens because experience shows that complicated legal frameworks regulating voting operations or inadequate design of electoral materials giving form to the legal framework inevitably generate high rates of abstention and invalid votes.

The objective, simply put, is that, “The legal framework should ensure that secrecy of the vote is guaranteed, and that all votes are counted and tabulated equally, fairly, and transparently.”[iv]

Ballots

Of course, one of the most fundamental instruments of electoral administration is the ballot itself and the most fundamental act of an election is casting a ballot. However, like many aspects of electoral administration the way in which ballots are cast is subject to innovation. Although many countries have carried out electronic voting, in the vast majority of cases electronic voting has created a need for parallel systems to verify the count and in some cases counting and has been carried out by automation companies instead of the official electoral authority. The use of e-voting is increasing with great prospects of development in the future, especially due to lower cost in the long run, however at present most electoral processes use ballot papers with the names of candidates.

Two different types of ballot papers can be distinguished; single ballot papers and separate ballot papers. With a single ballot paper, all candidates who participate in the election are listed and voters must mark their choice. In the case of separate ballot papers, each candidate or party list has its own ballot and voters have to choose amongst them. In the latter case, the election administration must ensure that all ballots are available in similar quantities and placed in a non-discriminatory way.

There is also another distinction that should be made between systems that allow only official ballot papers printed and approved by the election administration and available on polling day, and systems allowing ballot papers that have been officially approved and printed by the election administration to be distributed to supporters and even printed by each candidate or party before polling day. Undoubtedly, the use of single ballot papers, officially printed and distributed by the election administration is the most appropriate and widespread system. Allowing candidates and parties to print and distribute their own ballot papers can only be seen as a way to promote electoral propaganda. Indeed, this practice presents at least three major disadvantages. First, it may be used for electoral fraud, given that it may significantly reduce the guarantees of a personal and secret vote. Second, it may impede and significantly delay vote counting, as it can cause uncertainty about the validity of the ballots. Third, it increases the cost of elections, since the state is obliged to print an adequate number of ballots, but also the cost of extra ballots printed by parties and candidates may be calculated as an election expense which is often reimbursed by the state. Moreover, “If not properly handled by the EMB, the procurement, distribution and types of election material may generate conflict.”[v]

In terms of content, ballot papers should include the names of the candidates and party lists. Furthermore, the symbol of the list is usually included in order to facilitate voting by illiterate voters. Photographs of candidates or party leaders may also be included, and although this implies higher costs. To facilitate the vote, ballots should also be printed in all official languages as well as possibly major languages spoken. In terms of candidate presentation on the ballot paper, contestants should be represented in equal size, and their order should be determined in a fair manner, for example, by drawing lots.[vi] Taking into account the quantity of ballots required, the use of colors or high paper quality may result in considerable expenditure. Overall, the percentage of the electoral budget spent for ballots is considerably high and, in some cases, expensive ballot features may not be justified as necessary to secure the right to free suffrage.

The ballot paper, as a voting tool and not a political propaganda tool, should have a simple design in line with the principle of a free and secret vote. Complex ballot papers should be avoided since they, “can cause confusion for voters and may also delay voting and counting”[vii] as well as resulting in a greater number of invalid ballots.[viii] The design and production of ballots may also consider economic, organizational and environmental concerns. However, in some countries especially with new-born democracies, ballots with certain security measures are used in order to ensure the credibility of valid votes. Notwithstanding an implied increased cost, such measures are sometimes essential in order to avoid counterfeiting and in order to ensure that the only ballot papers used for voting are those officially produced (and accurately counted) by the electoral authority.

In some countries, the ballot has a counterfoil with a serial number in order to provide for better control and care of the ballots. If such a process is used then it is very important that steps are taken to ensure that the ballot cannot be reconciled in any way to reveal the identity of the voter.[ix] After all, the secrecy of the vote is guaranteed by international law.

Other ways in which voter secrecy may be best preserved and ballots can be well controlled include:

Polling Stations

Polling stations are an essential element of an electoral process. They are the sites where voting takes place and where votes are counted by the election administration. Therefore, it is essential to ensure freedom and secrecy of the vote in the polling stations.

In order to locate and create polling stations, it is necessary to establish an electoral map. To this end, the location of polling stations should be determined in each district according to the following criteria:

The hours for voting should be set in law and uniformly applied[iii] and should include some time outside regular working hours. It is also commonly understood that voters arriving at a polling station prior to the official closing time, but are still in line to vote as the polls close, will be allowed to vote.[iv]

The polling staff or Electoral Board is the key to the proper conduct of the voting and counting processes. They organize and supervise the voting procedure, count the ballots and prepare the minutes for the central election administration that is in charge of the tabulation of votes and allocation of seats. In this way, local boards and polling staff are responsible for the key operations of the entire electoral process. More specifically, they perform the identification of voters, decide on the validity of ballots and may certify the results. In many cases, the decisions of the Electoral Board cannot be challenged.

Thus, it is essential to achieve a suitable composition of the Electoral Board. In particular, polling officers must be independent from the government and political parties. With this in mind, polling officers are sometimes chosen by lot amongst individual citizens and their appointment binding. This procedure, if followed correctly, ensures the greatest likelihood that polling officers will act independent of any political party or candidate, and greatly reduces the possibility of fraud. The only drawback to this system is the lack of legal knowledge of the appointed officers, as an inevitable consequence of their largely non-professional character. Nevertheless, various measures may be taken to ensure knowledgeable and effective polling officers:

This composition is perfectly compatible with the fact that, in most of the jurisdictions that use it, there is the possibility for political parties and candidates to appoint representatives to each polling station (prosecutors, auditors, attorneys). The representatives of parties and candidates can be present at all operations, but usually without any decisive powers. In general, they contribute to electoral transparency, providing an important complement to the appointment of polling officers by lot. The presence of party or candidate representatives during the voting and counting operations should not be confused with national or international electoral observation, as they are two entirely different mechanisms.

It is good practice for electoral management bodies to institutionalize selection criteria for the recruitment of polling staff and performance management processes.[v]

Finally, it is necessary to ensure that people that do not play any role in the organization of the electoral process do not remain in the polling station, as their presence may hinder or interrupt the free conduct of elections. The legal framework usually grants to the President of the Electoral Board the power to authorize or prohibit the presence of other people in the electoral operations.

In addition to polling staff, other persons when authorized may also be present in the polling station. This includes of course voters but only while in the act of exercising their franchise, representatives of political parties and candidates, domestic and international observers where allowed, and security forces when necessary.

To facilitate the proper operation of a polling station it is imperative that even those authorized to be present in addition to polling station personnel clearly understand what they may and may not do. Training and written materials are useful and of course it is preferable if the legal framework also specifically addresses this matter.

Political parties and candidate have a clear vested interest in the conduct of an election and therefore their representatives should be enabled to observe all aspects of the process including the conduct of voting and the count. The legal framework should stipulate both the rights and obligations of party and candidate representatives while at the poll.[vi] In addition to the right to observe proceedings it is good practice that the legal framework requires challenges to voters or complaints about the operation of the polling place made by a representative of a party of candidate to be recorded in writing in the documentation for the voting place.[vii] On the other hand, authorized political representative must not otherwise disrupt the conduct of the voting place and of course, no campaigning, political displays or intimidation are to be permitted. The President of the Electoral Board should have the right to remove representatives for a breach of the regulations regarding their presence.

To facilitate the important role of authorized political representatives at the voting place and at the same time ensure that they act within what are proper limits it may be useful that the legal framework, including possibly a code of conduct, specify that at a minimum authorized political representatives must declare that they will:

The legal framework should otherwise specifically prohibit the presence in the polling station of other than persons whose presence is authorized under the law, such as local executive leaders.[ix]

The effective conduct of electoral operations during polling day presupposes that the polling stations be sufficiently protected in order to avoid disorders that may hinder the voting, and to ensure that the right to vote is exercised under democratic conditions.

For this purpose, the electoral law often vests the presiding officer with public authority, including the possibility to take the necessary measures for the maintenance of law and order. This authority often includes the ability to give precise instructions to whoever, in each polling station, performs electoral police functions.

In consolidated democracies, these functions are carried out by security, police or military forces. Sometimes however,” the presence of security forces around polling station may intimidate and instil fear in voters”[x] particularly in countries in political transition where this option is sometimes looked at with suspicion, due to its relation with the previous regime. This mistrust can lead to a very expensive and likely unreasonable appointment of special civil police, which performs its duties on polling day under the command of the electoral administration. Experience has shown, however, that the use of the armed forces during voting operations can present many advantages, not only because of its effectiveness and low additional cost, but also because of its importance for the stability of a country. Thus, armed forces may be attributed functions of cooperation and democracy strengthening under the command of the electoral administration. It is also very important for public opinion to see such collaboration between the different public institutions for the purpose of strengthening democracy, instead of the creation of an ephemeral and untrained electoral police. Where public security forces provide order at voting stations, it is preferable that the legal framework set out a code of conduct.[xi]

Voting Procedures

This section will review fundamental aspects of voting at voting places including privacy and secrecy, various special voting procedures and guarding against fraud.

While international law is clear regarding the right to vote in genuine elections, “International law is largely silent on the issue of voting procedures. This is likely in large part due to the variety of practice among States. However, election day procedures greatly impact the enjoyment of electoral rights.”[i] Therefore it is largely left to the national legal framework to establish voting procedures and to find effective ways to both make the secret ballot accessible to qualified voters and at the same time to safeguard against fraudulent voting.

Voting procedures to ensure that qualified voters are able to exercise their right must always be vigilant to respect that, “The secrecy of the ballot is one of the great pillars on which free and fair, credible and legitimate elections rest.”[ii] Election regulations must underline that not only is secret voting a right of the voter but an absolute obligation.[iii]

The basic international standard to be met is that voting by secret ballot should take place in the privacy of a voting booth, and in that the a manner that marked ballot cannot be seen as it is cast and cannot be later identified with a particular voter.[iv] Where for specified reasons a voter is unable to come to a voting place to vote the legal framework must provide for alternate mechanisms that will none the less meet the test of secrecy of the ballot.

Certain countries have specified in their legislation the minimum requirements for polling stations. For example, with respect to secrecy of voting, ensuring that polling officers have clear visibility of the entrance to the voting compartment in order to verify that voters enter the compartment unaccompanied, the absence of windows, holes or other ways of observation of the voting compartment and the requirement for a door or curtain. The custom in some countries, “of family voting -- where the head of a family casts ballots on behalf of the other members of the family -- should not be condoned.”[v] Similarly, voting at the same time as another person is in the voting compartment or voting outside of the voting booth should both be prohibited.[vi]

The provisions regulating voting procedures must ensure the proper identification of all voters and the existence of mechanisms to prevent multiple or fraudulent voting. However, the procedures should not be so complicated or cumbersome that they impede the voting process.[vii] The law should require that all ballots and voting materials are adequately safeguarded, before, during and after polling day.

As additional guarantees to the right to a free and secret vote, some legal orders require that ballots are cast and then placed in an envelope behind a curtain or inside a compartment provided at the polling station. In some jurisdictions voting in a compartment or behind a curtain is mandatory while in others it is simply optional often depending on the existence of a single ballot for all parties and candidates or separate ballot papers. With regard to the use of envelopes to protect the mark on the ballot, it could be argued that this is unnecessary, expensive, disturbs or at least delays the counting process and can be easily avoided by slightly increasing the thickness of the ballot paper. On the contrary, the mandatory use of compartments or curtains is an essential practice and with high educational value, even in those countries where the freedom to vote cannot be questioned. Another way to ensure the democratic character of the electoral process is the use of indelible ink to prevent an elector from voting more than once, as well as the use of transparent ballot boxes.

Finally, basic electoral materials should also include a record or register that reflect the accounting of ballots and the election results and the various incidents that occurred at each polling station. To the extent that the official tabulation and the allocation of seats are usually done based on these records and not directly on a recount of the ballots, these documents acquire a special significance for the electoral process. Taking into account that in many countries these documents are completed by citizens without special knowledge in the field, it is necessary that the records have a simple and understandable form. This need increases in inverse proportion to the level of social and cultural development of the country concerned. However, it is worthy of attention because this aspect does not always attract the attention it deserves by electoral management bodies and international organizations monitoring elections.

The fact that these records are usually filled at least in duplicate (even in more copies where representatives of political parties or candidates can have a copy) and the legal framework provides for alternative procedures aiming to ensure that they reach the electoral authorities on polling day reflects the important role of these documents.

The legal framework should be sufficiently flexible to allow the use of technological innovations in aspects related to the voting and vote counting procedures, such as the use of electronic machines for recording and counting votes. However, this degree of flexibility should be regulated by establishing requirements for approval and control before the use of new technologies.[viii]

2. Special Voting Provisions

Electoral laws may contain special mobile or mail voting provisions to facilitate voting by persons with disabilities, people in hospitals or prisons, voters abroad (for example, citizens abroad for professional reasons, diplomats or voters displaced by war), or voters who cannot personally reach the polls due to any other significant reason.

Such voting provisions may be available to a single individual, such as a housebound, or incapacitated voter or a person who is abroad on business; or to a class of voters, such as diplomats, police, the military or other security forces; or to an entire community, such as a hospital, or other institution or persons displaced due to the outbreak of war. However applied, these provisions must not be discriminatory and must be applied uniformly to all voters who are in the same situation and should be designed to prevent abuse.[ix]

Special voting provisions should also strive to respect the dignity of the person. For example, in the case of disabled or illiterate voters, “Wherever possible …steps should be taken to enable them to vote without assistance.”[x] At other times, this may not be practical and the voter may require the assistance of another. In such cases, the legal framework should consider who may qualify to assist the voter (e.g. should political representatives be allowed) and how many times a single person may assist other voters.

Where the law specifies that qualified voters may vote other than at a designated voting place there are generally a variety of provisions including the following:

• Mobile voting, where polling officials transport a mobile ballot box to voters who

cannot attend their designated polling station (e.g., ill or elderly voters can cast

their ballot at home or a hospital). Mobile voting usually takes place on election

• Postal voting, where voters cast their ballots by post in advance of election day;

• Early voting, where voters unable to attend their designated polling station on

election day (e.g., election officials or security personnel) cast their ballot early;

• Prison-voting, where prisoners who retain suffrage cast their ballots in special

• Out-of-country voting, where expatriate citizens entitled to suffrage cast their ballots

• Military voting, where members of the armed forces vote at a designated local

In the application of these provisions, all possible and reasonable steps should be taken to continue to safeguard the secrecy and privacy of the vote and other procedures that would otherwise be in effect at a voting place. For example, where a mobile poll is used, the presence of party or candidate representatives together with voting officials will help to ensure the integrity of the process. Where mail ballots are employed then a double envelope system should be used so that the inner envelope in which the ballot is deposited is a blank envelope thereby preventing identification of the voters.[xii] In the case of early voting, for example, steps need to be taken to ensure that the name of the voter is marked as having voted so that the voter may not vote again either at another early voting place or their regular voting place on election day.

It is generally accepted that the legal framework may provide that members of the army or the police forces can exercise their right to vote while on active duty. While it is important to protect the voting rights of members of the army or the police, the relevant legal provisions should be carefully designed to prevent abuse.

Furthermore, the legal framework often allows the establishment of polling stations in military units located in remote areas far from any population center. While in some cases the adoption of such measures may be inevitable, it should be accompanied by an express provision specifying that it applies only in exceptional situations and, where possible, members of the military and the police should vote in advance. Members of the armed forces who are not on active duty on polling day must vote at an ordinary polling station, without wearing uniform and carrying arms.[xiii]

The principle of voter accommodation is commendable, however related provisions should be written to prevent abuse and fraud. To minimize this possibility and safeguard the integrity of the special voting provisions, the legal framework should include the following:

• A process to clearly identify voters eligible to use alternative voting provisions and to prevent double voting.

• Special voting provisions should only be applied in well-defined situations, e.g., in cases where it is not physically possible for the voter to travel to a regular polling station to vote; however, some jurisdictions might provide exceptions to this for special reasons, for example, allowing a large section of its voters to vote by mail.

• Representatives of parties and candidates as well as election observers should be permitted to monitor special voting stations.

• The number of ballot papers with serial numbers and other security features used and the number later returned, should be formally and transparently recorded.

• The number of ballot papers issued should correspond with the number of requests received, plus a specified small number of extra ballots to allow for voters who may spoil their ballot paper.

• The names and number of requesting voters who have used or are using the special provisions should be recorded in polling-station and other protocols in order to avoid double voting and to identify particular areas where the proportion of votes cast is unusually high, which may point to the occurrence of fraud.[xiv]

Once voting takes place outside of the confines of a voting place in particular it is evidently more difficult to control, “Therefore, an assessment of the advantages of special voting provisions must be weighed against the ability to regulate them properly, securely and transparently, as well as their effecton degree of confidence in the overall election process.”[xv] Special voting provisions are enfranchising and a practical necessity but so too must the legal framework strive to safeguard the integrity of the process.

Electronic voting processes likely have significant potential applications to some Special Voting Provisions, and may ultimately pave the way for more general application of electronic voting.

Vote Counting

International law establishes the fundamental right to genuine elections but, “international law does not provide a great deal of guidance on the interaction between the counting process and fundamental rights.”[i] It is up to the national legal framework to ensure that all votes are counted accurately, fairly, equally and transparently. As a result, there is a great variation among specific vote counting procedures. (Note: The text in this section considers several sources but relies heavily upon the vote counting discussion in International IDEA’s, International Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections).

A fair, honest and transparent vote count is an essential component of democratic elections. This implies that votes be counted, tabulated and consolidated in the presence of representatives of political parties, candidates and election observers, and that the whole process through which the winners are determined is fully open to public scrutiny. Therefore the legal framework itself must ensure the right of presence for such representatives during the counting, tabulation and consolidation of votes.[ii] In fact, the HRC, “specifies that ballots should be counted in the presence of candidates and their agents.”[iii]

Votes are most often counted immediately following the close of voting at each voting place. However, it is not unusual that special counting centers may be established in order to provide a more secure, controlled and highly supervised environment. One other advantage to counting centers depending on the circumstances is that, “through the mixing of ballot papers from different polling stations, (counting centers) can address concern that retribution may be taken against voters where the results of individual polling stations are known.”[iv]

Regardless of whether votes are counted at the polling station or at a special counting center, representatives of political parties and candidates and election observers must be allowed to be present during this process. This is especially important where special counting centers are established because, “The transportation of ballot papers between centres of voting and counting is a potential source of suspicion and fraud.”[v]

Besides ensuring the presence of these stakeholders during vote counting, the legal framework should include safeguards when technological devices are used during counting. The legal framework may provide the possibility for independent verification of the reliability and accuracy of the equipment and software used for counting. Whether the counting is manual, mechanical or electronic, revising processes are necessary in order to ensure reliability and accuracy. The law must also establish means of challenging the counting procedures, including objections relating to the criteria used to determine the validity of ballots.

The legal framework must also clearly indicate the formula that will be used to convert votes into seats. The thresholds, quotas or other details of the electoral formula used should be stated clearly, and any other possibility, such as a tie, withdrawal or death of a candidate must be addressed.

Clear criteria should be established for determining the validity or invalidity of ballots. The rules for determining the validity of ballots to be counted should not be so severe as to result in an unreasonable exclusion of voters. The core principle should be that if the voter's intention is clear, the ballot must be counted. For example, “The adoption of overly strict rules for determining the validity of ballots, for example, requiring that a ballot with a check mark rather than a cross next to the chosen candidate be disqualified can work against illiterate or poorly educated voters.”[vi] Or it may be added, the careless voter or voter in a hurry. It is particularly important that the law clearly sets out what is and is not a valid ballot especially when considering that in many cases the count of the local voting place officials is determinative often final subject only to judicial appeal. As such, training of local counting officials is also critical.

The legal framework should also clearly specify, where possible, that certified copies of the results are provided to the representatives of parties and candidates and to election observers. The law should also specify which bodies or authorities shall be entitled, if applicable, to receive this information before the competent election authority issues the certified results.

The legal framework has to set, in clear and objective language, the procedures for transmitting or transferring the certified copies of the results, ballot papers and other election materials from the polling stations to the various offices of the electoral authority for consolidation and safeguarding. It is important that the law requires that the tabulation or consolidation of every vote count be available in a format that allows representatives of parties and candidates and election observers to record and keep track of vote counting from the polling stations until its final consolidation through the different levels.

The tabulation for any polling station must provide detailed information on the number of ballots used, the blank ballots, spoiled or invalid ballots, and the number of votes obtained by each party or candidate. This information can be broken down according to the different voting methods used, such as voting by mail or by mobile devices, where this can be done without compromising ballot secrecy. The information at this level of detail is necessary to enable the representatives of parties and candidates and election observers to track and control for results and to determine accurately, in case fraud or irregularity have occurred, where figures were illegally altered during the process of consolidation of results.

In many cases, the opportunity to publish the results may be key to its acceptance by all contenders. Therefore, the legal framework must provide for the timely publication of the results, and indicate whether the electoral authorities may announce partial or preliminary results before the final certification. If results can be announced prior to the final certification, the legal framework should clearly regulate the manner of making such announcements. With the exception of restrictions indicated by the existence of several time zones, the media and representatives of parties and candidates should be free to publish the results of the election. It is typically the president of the polling station, in case of counting at that level, or the director of elections at the highest level of the EMB, who announce the results of the count. It is common for countries comprising more than one time zone to impose certain restrictions on the dissemination of results before all polls have closed.

It is desirable that the legal framework requires that all relevant counting documents, such as tabulation or tally sheets and generally documents containing decisions that influence the outcome of the election be publicly accessible. Such documents can be posted in public places at all levels of the election administration, from the polling station to the various levels of the electoral body. Detailed tabulations of the overall results, including results by polling station, can be posted in each electoral office. They may also be published in state-owned or state-controlled print media and, if possible, on the website of the electoral body, as soon as the final results are certified.

To prevent any kind of fraud, it is also recommended that the legal framework require posting of formats or documents in public places showing the counting and tallying of votes in each of the levels where these operations were carried out. The possibility of fraud is present to the extent that there is no requirement for election authorities to publicly display the results of tallies and tabulations.

The legal framework must clearly specify the period within which the final certification of the election results and the corresponding certification process must take place, including notifications or announcements to candidates on their election and term of office. In addition, the law should clearly specify under what conditions a recount or new election can be conducted in one or all of the polling stations. The law should clearly state who can request a recount or a new election, the deadline and procedure for doing so, the deadline for adjudicating on the request and the date and procedures that, if applicable, must govern the recount or a new election. When using some sort of technological device for counting or tabulating, the law should clearly indicate exactly what the recount will entail, for example, if all data will be reintroduced, if a parallel manual count will be conducted, etc.

The legal framework must provide for secure storage of all ballots and electoral materials until the deadline to challenge the certified results has passed, or in case a challenge is made, until a final judgment is pronounced.

In extreme circumstances, the publication of election results at the polling station level could jeopardize the security of voters or polling officials. This possibility exists in those cases where the election takes place after a civil war or in societies marked by sharp conflicts where tensions prevail. Under extreme circumstances, the law may provide exceptional measures regarding the local publication of results in order not to jeopardize the voters.

National and International Observers

Election observation is an often used term. Nevertheless, it is instructive to begin with a working definition taken from the 2005 UN Declaration of Principles for International Election Observation which states:

International election observation is: the systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis.[i]

In consolidated democratic systems it is considered that the electoral processes are carried out in line with sufficient guarantees and that the establishment of systems for observation and additional control are not necessary. Thus, the combination of electoral management bodies, polling officials, representatives of political parties, the possibility to challenge the procedure before an independent authority and freedom of the media are seen as sufficient elements to ensure electoral transparency. In these cases, there is no imperative need for observation of the electoral process by international, national and politically neutral organizations, with the exception of missions of a very limited scope to demonstrate electoral transparency, such as for example, the presence of international visitors. In contrast, observation seems extremely useful in the transition to democracy. It is, in this light, possible to establish a qualitative division between electoral events based on the requirement or not for national or international observation.

Election observation may take the form of domestic observations (sometimes referred to as “monitoring”) and international observation. Election observation also varies with short term observation most often focusing on election day and involving a large force of observers, and long term observation which involves usually smaller expert teams of observers in country well in advance of an election in order to observe the preparatory and campaign phases as well as voting, vote counting and results.

Both types of election observation play an important role in terms of enhancing the transparency and credibility of elections and the acceptance of results and may potentially contribute to the prevention, management or transformation of election-related conflicts.[ii] Therefore, “The legal framework should provide for observers, including domestic and foreign, and representatives of the media, political parties and candidates, to ensure transparency of all electoral processes. Transparency of the electoral process is a minimum standard necessary to ensure democratic elections.”[iii]

International law is largely silent in terms of the rights of observers[iv] but the value of election observation can be enhanced by a legal framework that goes beyond simply acknowledging its possibility. It would be helpful if the legal framework specified the rights of observers to do their job by freedom of movement, inspection of documents, attending meetings, monitoring all phases, and having a right of recourse where observers have complaints about interference. At the same time, it would be helpful to specify what an observer may not do, such as interfere with electoral procedures or act in any partisan manner. Ideally, “The legal framework should strike a balance between rights of observers and the orderly administration of the election processes.”[v]

Beyond the legal framework, there are also expectations regarding how observers should conduct themselves. As general principles, election observation must must recognize and respect the sovereignty of the host country, be non-partisan and neutral, comprehensive, transparent, accurate and professional.[vi] In 2005, standards for the conduct of international election observation were created by way of the Declaration of Principles for International Election Observation and an accompanying Code of Conduct.

Notwithstanding that, “International election observation is neither a right, nor as yet a recognized international standard”[vii] there has been and continues to be a tremendous amount of such activity. In the 80’s and 90’s various international entities carried out complex election observation operations in African (Uganda, Mozambique, Angola, South Africa) and South American countries (El Salvador, Nicaragua) as a form of cooperation in the political transition process. However, since 1986, as an alternative to the increasingly costly operations of international election observation, national or international NGOs play the same role.

International election observers rely upon some form of invitation or agreement with a sovereign state in order to officially observe an election. On the other hand, “As citizens, domestic observers have a right to participate in the public affairs of their countries.”[viii] As such, “A legal framework for elections should provide guarantees for the right of domestic non-partisan observer groups.”[ix]

The phenomenon of national election observation deserves to be carefully analyzed. On the one hand, it is clear that this alternative presents many advantages, as it implies significantly lower costs than the international operations and contributes to the development of democratic awareness at national level. It is also an essential element in countries where international election observation missions are legally banned and this prohibition cannot be sufficiently overcome by using international visitors. It should be acknowledged that certain countries are not favorable towards international election observation, which explains why such operations are sometimes "observed" themselves with suspicion, as national electoral authorities and political parties consider that foreign interests are now pursued through these NGOs.

National election observation is an ambiguous phenomenon. On the one hand, it is very positive when seen as an alternative to the transfer of thousands of international observers, of whom the vast majority is not familiar with the country and even with the electoral process. On the other hand, it is questionable whether it contributes to the reinforcement of the electoral administration and the political parties. In the most effective scenario it is not a case of either/or but a case of both national and international election observation. Each approach has its own limitations but each also can bring great value.

Overall, election observation and monitoring by international and domestic election observers may provide tremendous value in terms of aiding transparency, accountability and confidence in elections. Increasing trends toward longer term international observation and the role of domestic observers bode well and should be seen as an obligation:

An adage often repeated in the electoral arena is that it is possible to conduct a credible election under a weak or even bad legal framework, if those with governmental power have the will to do so – and it is extremely difficult to conduct a credible election, even under a strong legal framework for democratic elections, if those with governmental power intend otherwise. Civil society therefore has a responsibility to organize itself to monitor implementation of legal frameworks to ensure that credible elections take place and to expose the facts when elections lack credibility. Knowledge of legal frameworks is essential to accurately making that distinction.[x]

Voter and Civic Education

Education may seem to be a distance from the traditional role of electoral management bodies to prepare for and undertake the logistical requirements of an election but increasingly this is an active area for such bodies because there is recognition of a direct linkage: “For an election to be successful and democratic, voters must understand their rights and responsibilities, and must be sufficiently knowledgeable and well informed to cast ballots that are legally valid and to participate meaningfully in the voting process.”[i] In post-conflict situations the challenges and opportunities may be even starker. In fact, failing to provide the information necessary to participate in elections in a way that is fulsome and timely, “may, by omission, constitute an unreasonable restriction on the exercise of electoral related rights.”[ii]

When speaking of education in the context of electoral processes, two related but different concepts emerge. First, there is the notion of “voter education” which is most directly related to electoral management bodies informing voters of how to go about all the technical aspects of an election including being registered and voting. “Civic education” may be understood as a broader term intended to increase the population’s knowledge of principles and features associated with government, such as the political system.

The purpose of civic education and voter education campaigns is often not purely informative, but aims also by encouragement and incentive to increase overall engagement in the election and voter turnout specifically, although some electoral laws formally prohibit such purpose. It is essential that civic education and voter information campaigns respect the principles of objectivity, transparency, equality, pluralism and neutrality of electoral authorities. Some legal orders include an explicit prohibition against using voter information and civic education campaigns to direct voters towards a specific candidate or political party. In such a framework, one of the functions of electoral administration bodies is to regulate voter information and civic education campaigns carried out by the government in order to prevent partiality, such as acts that may prejudice the public interest or the regular function of public services.

As electoral processes are more and more institutionalized and increasingly conducted in compliance with rules, voter education becomes a more prominent task in the activities of the electoral bodies. Voter education programs will target all voters but special attention should be directed to historically marginalized or disadvantaged groups of voters as, “Any special measures likely would not be considered discriminatory because they support the fulfillment of the State’s duty to ensure the rights of groups who suffer (or have historically suffered) discrimination.”[iii] As well, low turnout groups such as youth are often specifically targeted.

A strong voter education program is critical to ensuring the free participation of qualified voters in genuine elections. This initiative, however, “is most effective when linked with a programme of civic education that puts the election into context for voters and provides an explanation of the election’s purpose, the surrounding issues, and their significance.”[iv] A main channel for civic education is the school system beginning with pre-voting age youth and preparing them with concepts that one day will have expression in the act of voting.

Informing and educating voters also implies greater voter participation in electoral processes. While voter turnout is a very complex phenomenon with many variables, as Elections Canada reports on Canada’s Democracy Week 2012 Website, “Studies in Canada, the United States and Australia demonstrate that civic education has a positive impact on key factors associated with voter turnout, such as political knowledge, interest, attitudes, civic participation and intent to vote.”[v] Thus, education in the framework of a democratic culture becomes more and more necessary. It requires building a political culture in which all members of a community, from an early age should assimilate and be informed of democratic values that citizens should share and spread. Therefore, in addition to the educative role that ordinary social stakeholders, such as the family, schools and meeting places can play, electoral authorities should play a significant role.

It is, of course, important that as electoral management bodies increasingly take on a role in civic and voter education that sufficient funding is provided in order that programming will be adequate and sustained over time. In some jurisdictions in Canada, for example, funding for voter education is expressly provided for by a direct draw on the treasury without need for an enabling vote. However, in all instances including budgeting considerations, there is value in the efforts of electoral management bodies being supported by like-minded initiatives by the public and private media, political parties, and non-governmental and international organizations playing a vital role.[vi] Elections management bodies must take the lead however, as they are uniquely qualified to provide technical, credible and non-partisan voter information on a timely basis as it is needed.

One other way to encourage efficiency in this area is to share lessons learned and best practices. On this front, a major cross-national study on civic education, the Civic Education Study (CIVICED), is currently being carried out under the auspices of International IDEA and l'Université de Montréal, Canada and is targeted for completion in 2012. The study draws upon questionnaires completed by civic education specialists in over 35 countries in order to compile a database to serve as a resource for researchers, policy makers, educators and academics around the world.[vii]

Increasingly legal frameworks are recognizing the role of electoral management bodies related to voter education. Not only do electoral authorities have the technical competence to add value to voter education but also there exists an inherent obligation to contribute to such an important undertaking that may eventually be translated into political participation.

Media and Elections

Media play an essential role in the conduct of democratic elections, “Not only do media outlets provide candidates a platform to voice their political opinions, they also provide information to voters and can serve as a watchdog for government actions.”[i] A free and fair election does not only imply that citizens are allowed to vote in proper conditions but also that relevant information on political parties, candidates and the election process itself is provided so that voters are able to make informed choices. Therefore, freedom of the media is very important in order to ensure a democratic election. (Note: The text in this section considers several sources but relies heavily upon the vote counting discussion in International IDEA’s, International Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections.)

However, regulation of the political use of the media is reasonable given the fact that media exposure and elections have an increasingly close relationship. Due to the fact that the media is considered the best mechanisms for message dissemination, it has become a focal point, especially with regard to election campaigns. However, while some regulation of the media is very well founded, “Any legal measures applied to the media sector should not, however, be overly restrictive or unnecessarily impede the activities of the media, and they should be proportional and ‘necessary in a democratic society’.”[ii]

Indeed, recent experience shows that the ranking of political parties has become more dependent on the use of economic rather than ideological tools, as parties use their constant presence in the mass media as an effective strategy in order to gain social exposure as they strive to claim voters’ preference. In this sense, it is highly important that aspects of the activities of mass media with regard to politics and elections are regulated. Media regulation should ensure that the use of mass media, such as radio, television or the Internet do not become a factor that creates inequality in elections. It is crucial that the legal framework guarantees that all political parties and candidates have access to the media and are treated on an equal basis by the media owned or controlled by the State, and that no excessive restrictions are imposed on the right to free expression of political parties and candidates during election campaigns.

Some political parties own newspapers and even television channels, which play a vital role in the dissemination of the party's campaign to the voters. Where there are more private rather than government owned media the question of equal access for parties and candidates also arises and may need to be regulated. Unlike with regard to state-controlled media, “it seems that, according to international law, private media is under no compunction to provide equal access to political contestants.”[iii]

There is however, an acceptable international standard of non-discrimination which is held to be applicable to private media. If political advertising is allowed, the private media must charge the same rates to all parties and candidates without discrimination. In certain countries, paid political advertisement is banned, while in others such a ban has been interpreted as an unjustified breach of the freedom of expression. Nevertheless, paid political advertising should always be identified as such and should not be disguised as news or editorial coverage.

It is important that there are clear legal provisions for the timely implementation of these guarantees before and during elections. The process for establishing a formula or schedule for access and equal treatment in the media for a particular election should not contain ambiguities and must allow its objective application. For example, 50% of the time could be distributed equally among all parties and 50% in proportion to the votes obtained in the last election or to the number of seats held in the parliament. Since political debate and some form of political campaigning also takes place outside of election periods, a further entitlement promoting open dialogue could be, ”to require provision to political parties of the right to free time on public radio and television on a permanent basis, and not only during electoral periods.”[v]

The access of political parties and candidates to the media may be regulated in a national law covering the media or public information, and not necessarily in the electoral law. Media law may only contain general provisions on access and delegate the authority for determining the details of its implementation to an administrative body, such as a specialized media committee. There are various forms, “for such a supervisory body, including a self-regulatory model, a traditional regulatory authority that is responsible for overseeing the activities of the media on a permanent basis, or, sometimes, a branch of the EMB.”[vi] Whatever the model, the important obligation is that the body act with independence, impartiality, transparency and consistency.[vii]

The rules on access and equal treatment can be breached if the state-owned media are able to favor a political party or candidate in alleged news coverage, discussion forums or editorials. The law should prohibit partial coverage or preferential treatment in the state-owned media and establish applicable corrective mechanisms and penalties. Such regulation is necessary because, “in many countries the ruling party dominates the public media. Though the emergence of independent media has had the effect of challenging this monopoly there is still a perception that in some cases the public media are not sufficiently accountable to the populous, often resorting to sensational and biased reporting.”[viii]

The rapidly changing nature of media is also having a significant impact on the conduct and media coverage of election campaigns. Certainly, international law has struggled to keep up with such rapid changes but among the issues to be considered are, “that impartial information regarding the election and electoral contestants is available online; the role and regulation of blogs and non-professional, citizen journalism during the electoral period; and the impact of new media on the regulation of campaign finance.”[ix]

A democratic election is not possible where the legal framework for elections inhibits or creates obstacles for campaign speeches and free expression. Very often, the legal framework of countries in transition to democracy censors campaign speeches by imposing penalties against public speeches that "defame" or "insult" another person or political rival, which may include criticism of the government, a government official or a candidate. Such provisions can be found not only in the electoral legislation or media law, but also in the Constitution or in civil, criminal and administrative laws. Any legal provision regulating defamation of reputation should be limited to civil law. Any provision, regardless of its legal source, that imposes penalties of disqualification, imprisonment or a fine for criticizing or "defaming" the government, another candidate or political party, may lead to abuses. Restrictions on freedom of expression may well violate international human rights law.[x] In addition, such provisions may violate the guarantees to freedom of expression enshrined in the Constitution of a country. These freedoms need to be taken into consideration when reviewing provisions that permit censorship of candidates, supporters or the media and are contrary both to international and domestic standards. The only exceptions may be a specific prohibition of communications likely to incite racial or religious hatred [xi]or inciting violence.

Regulations and conditions that create obstacles and penalize free speech not only deny fundamental rights and the ability of political parties and candidates to communicate directly with voters but also, “In an overly restrictive media environment, journalists may practice self-censorship to avoid harassment or sanctions by the authorities, thus limiting the information and diversity of views available to the electorate.”[xii]

The conduct opinion polls and exit polls-especially when their results can influence the judgment of voters who have not yet gone to the polls-is another area that needs to be taken into consideration. In some countries it is considered that any limitation on opinion polls or exit polls constitutes an infringement to the freedom of expression and is therefore unacceptable. Moreover, in some countries, the publication of such results is permitted only after the polling has closed. Any legal provisions placing unreasonable or disproportionate restrictions on the freedom of expression during election campaigns should be amended or deleted from the legal framework.

The legislative framework should consider the establishment of a specific regime for conducting opinion polls during election periods. The purpose of regulation related to opinion polling is to prevent political groups and parties from manipulating the electorate through opinion polls that may eventually affect the election result. The most common measures in this regard are the following:

Another form of opinion polling is the mechanism of "exit-polls", which was used for the first time in Israel. Unlike opinion polls, exit-polls do not refer to voting intentions, but are based on the replies of randomly selected voters after having voted. However, unlike preliminary election results which are recounted and verified after the closing of the polls, exit-polls are only based on voters’ affirmations. Hence, a reliability problem arises. Although it may be assumed that voters in stable democracies have no reason to hide or lie about their vote, especially taking into account that there is no obligation to reply to an exit-poll, in practice they often do so. Indeed, exit-polls have failed to predict election results in many European countries. Thus it may be expected that the level of reliability of exit-polls is even lower in countries in transition, where citizens’ fears may have some factual basis.

Exit polls may therefore result in the disclosure of inaccurate data, generating confusion and hindering the acceptance of the results by the defeated, especially in countries in transition. Moreover, their compatibility with the principle of the secret ballot may be questioned. The efficiency of exit-polls is even questioned in consolidated democracies, where new technology systems of rapid count allow the release of accurate and fully reliable preliminary results in a very short period of time. To sum up, exit-polls may hinder the electoral process in countries in political transition and, in any case, they are expensive and unreliable.

Not only is it important to regulate the allocation of broadcasting time in the media, but also to regulate other issues, such as unfair media coverage of election campaigns and the dissemination of polls and surveys in certain periods, as these can eventually be factors that hinder equal competition.

Elections and Technology

Thanks to the technological advances developed at the end of the last century, it is possible to implement advanced technology in elections and that interest is growing. The everyday impact of technology on election management is very significant and growing. This technology can be aimed at assisting document creation, processing and management, new and more powerful election management information systems, creating and managing voter registers, vote casting, vote counting, expanded public access to information such as filings and reports, powerful tools to make boundary redistribution more effective and efficient or new and expanded ways to share information among practitioners, to name a few.

In this regard, regulation has lagged behind technological developments. Appropriate regulation should allow the wise implementation of technology in electoral processes ranging from database systems for voter registration, electronic voting, bio-identification systems, scanning and geographic information systems. However, nothing captures the potential and challenges of the implementation of technology in elections more so than electronic voting and vote counting and while it is far beyond the scope of this section to examine all facets of this debate, it does serve as a good example of the relationship between technology and the legal framework.

On the one hand, electronic voting and counting has the potential to increase speed and voter access, while potentially reducing human error and cost. There is also the matter of public expectations in an increasingly technological savvy world. The strongest advocates argue that new technologies may even increase voter participation. However, on the other hand, especially in an uncontrolled environment outside a voting location, this innovation faces potential risks such as the loss of transparency, observation and audit, fraud and manipulation, vote selling, intimidation and loss of secrecy. Of course, there is much that can be done to manage risk and indeed numerous jurisdictions now employ electronic voting technologies including, direct recording electronic (DRE) equipment, ballot-scanning devices, the Internet and mobile telephone networks.[i] However, it is also reasonable to acknowledge that, “such technologies also pose challenges to the transparency and accountability of an election process, to the secrecy of the vote and may influence perceptions about the security of the vote and have a negative impact on voter confidence.”[ii]

However, in the matter of something as important as elections, what is not up for debate is that, “the standards for assessing elections using traditional ballot papers apply equally to e-voting. Thus, all eligible voters should have the right to vote, the secrecy of the ballot should be guaranteed, and results tallied by e-voting equipment should accurately reflect voter intention.”[iii] The use of technology should not jeopardize the citizens' trust in elections.

Positive regulation should encourage the use of technology which in most cases implies cost reduction. However, the use of technology should not jeopardize the security of elections and citizens’ trust in elections given the vulnerability especially of certain electronic systems. The secrecy and freedom of the vote must be ensured as paramount. For these reasons, while the legal framework needs to be flexible enough to make best use of available technology, where the application of such technologies may impact the fundamental principles of elections, “Such wide flexibility might be regulated by requiring that certain types of approval be obtained before adopting them.”[iv] At the very least, this would allow careful consideration, debate and purposeful decision making going forward.

Electoral Campaign

An electoral campaign can be defined as the set of organizational and communication activities carried out by candidates and/or political parties with the aim of attracting voters. The electoral campaign often begins in earnest once the candidacies are formally announced. This period is distinguished by candidates and political parties mounting heightened political campaigns.[i]

This period is critical to a democratic election and rests on the fundamental rights of freedom of expression, association, peaceful assembly and movement. The importance of campaigning is recognized in international law:

The free communication of information and ideas between candidates and their supporters is recognized as necessary in international law, as is the need for candidates, parties and their supporters to be able to debate public affairs criticize and oppose one another publish political material and advertise political ideas. In addition, voters have a right to access information about the candidates for whom they will vote.[ii]

Having said this, it is important to acknowledge that the state may in certain defined circumstances limit candidates and their supporters and their right of expression (when those expressions seek to destroy or undermine other established rights or when they are in advocacy of national, racial or religious hatred that constitutes incitement) and rights of association and assembly (for example in the case of national security, public safety, public order, public health or morals or the protection of the rights and freedoms of others).[iii] The onus must be to ensure that whatever the restrictions, they are established in law, reasonable in a democratic society, uniformly applied and that there is the right to a timely appeal to the judiciary or other independent body.

i. Actors in the electoral campaign

In a strict sense, political campaigns can only be conducted by legally established political parties and formally proclaimed candidates. Nevertheless, other organizations such as trade unions, employer organizations, groups of citizens, the media and even famous people completely unrelated to politics often publicly express their support for a particular candidate and encourage the public to vote for that person thereby in a practical sense engaging in election campaign activities. In democratic systems it is not possible to impose restrictions on freedom of expression which would prevent such groups and individuals from making public declarations, especially taking into consideration that during elections citizens are called to express their opinion. However, legal provisions do regulate the conduct of candidates and political parties in electoral campaigns, including that certain electoral actors will receive public funding or benefits to cover the expenses of their electoral campaign.

In addition, the legislative framework should ensure that electoral campaign activities are not carried out by people who because of their professional or political position may influence voters in a way that violates ethical principles of equality. Furthermore, members of institutions and bodies that are involved in the electoral process (members of electoral administration bodies, the judiciary, etc.) or may unduly influence the opinion of voters (army and police) should also remain neutral and not be allowed to perform any acts of electoral campaigning. These restrictions on fundamental rights can be legally justified, provided that they are accurately stated and predetermined in the Constitution or the law and aim to ensure a fully democratic election. Therefore, the violation of such rules should also be followed by criminal, disciplinary or electoral penalties.

ii Time limits

Electoral campaigns take place between formally and officially proclaimed candidates or parties and are usually limited to a certain period of time. Normally, the electoral campaign starts at the proclamation by the competent authorities and ends the day before the election day. In this way, the electoral laws seek to restrict acts of campaigning outside the campaign period, including the transmission of political advertisements. The length of the electoral campaign period often ranges from two to four weeks; however there are those exceptions that provide for longer periods of time. Such is the case in Mexico, where the campaign period for presidential elections lasts more than four months resulting among other things in excessive electoral campaign expenditures.

However, prohibitions are more problematic for periods prior to the formal proclamation of candidacies, starting from the announcement of elections. In this case, a conflict arises between rules proscribing prohibitions and freedom of speech as well as the constitutional functions of political parties. Therefore, in jurisdictions where such prohibitions are explicit, these rules are usually interpreted extremely narrowly and are mainly related to the prohibition of vote requests, rather than the performance of any other campaign act that does not constitute a formal vote request.

The legal framework usually includes a “period of reflection”, which consists of a prohibition of any electoral campaigning at least twenty-four hours (in some cases days) before the opening of the polls. The intent of this period is to restrict electoral campaigning as major voting operations open and thereby allowing voters to reflect and decide on their vote. One of the most important elements for achieving free and fair elections is the existence of an election campaign that respects the above-mentioned rules, thus ensuring free formation of voters’ preferences to be expressed on polling day. The level of equal opportunities for all candidates and of government neutrality in electoral campaigns depends to a large extent on the level of democratic development in each country and, ultimately, on the mechanisms for the protection of fundamental rights and the separation of powers.

Sometimes, however, when in the extreme the succession to power is at stake, mechanisms of public power are often used for the benefit of their holders. Hence, emphasis should be put on the role of electoral bodies and the judiciary to ensure full implementation of the equality of opportunities.

To sum up, elections are a means to convert the popular will to a representative government. In order to achieve this goal, it is necessary that all parties and candidates are free to transmit their political messages to the voters - to address political issues and propose solutions - during the campaign period. This period must be clearly defined, starting after the nominations of parties and candidates have been announced and ending before the polling day.

iii. In-kind support for political campaigns

The State often provides candidates and parties with different kinds of support for their electoral campaigns aiming to encourage campaigning on an equitable basis and considerate of not wasting the resources of political parties. As such, the legal framework should contain provisions not only with regard to state funding of political parties, but also regarding maximum ceilings of campaign expenses (these aspects are dealt with in a subsequent section). The state may provide various in kind means of support to political campaigns but in doing so care must be taken that, “No party or candidate (especially the ruling party) is favoured, financially or otherwise through the availability or use of state resources.”[iv]

In kind support for electoral campaigns of parties and candidates usually include the following:

The legal framework should make it clear that public resources may not be used in such a way as to tip the campaign playing field in favour any candidate or political party.

Public spaces and buildings, for example, can often be used for campaigning and for the placement of campaign posters or signs of the different candidates. However, the fairness of a campaign will be undermined where state resources such as public buildings are used for campaign events in an unreasonable way to favour one candidate or political party.[v] From a democratic perspective, this space should be allocated on an equitable basis or according to reasonable and objective pre-determined criteria, for example, in proportion to the votes obtained by the party in the most recent elections. The same approach should apply to other material resources such as vehicles and office use where such use is permitted. These operations should be conducted or supervised by the electoral management bodies in order to ensure equal opportunities for all candidates and parties.

In terms of human resources the legal framework should clearly specify the extent to which public employees may participate in the political campaign and at a minimum require a complete separation of roles as public servant and partisan of a political campaign. Public servants should also be protected against intimidation or coercion to support a particular candidate or party in fear for their employment.[vi]

The banning the political contribution of government resources (other than direct political funding schemes) is a global trend with 94 of 110 countries for which data is available, reporting a ban, albeit the effectiveness of which is open to further study.[vii]

The allocation of broadcast time is highly important taking into account that electoral campaigns are more and more conducted through the media. As a result, it is essential that the allocation of state controlled media broadcast time be included in the legal framework. In doing so, the following principles should be respected regarding state controlled media:

Globally, 69% of countries, including a large focus in Africa, provide free or subsidized media access to political parties.[viii]

With respect to private media, electoral legislation usually contains two types of provisions. The first is addressed to the candidates and usually sets a limit on the amounts that can be spent on this type of activity. The second is addressed to the Media and prohibits discrimination regarding prices and inclusion or exclusion of candidates from political advertising.

Another public contribution or indirect method of public funding is providing to candidates a copy of the census or the updated electoral lists, with the dual purpose of enabling parties and candidates to carry out a personalized campaign and to monitor and manage voter turnout during voting. In some countries, a problem has emerged regarding the protection of valuable and personal citizen census data for only authorized purposes As a result, there have been cases of candidacies by organized economic groups with the sole purpose of obtaining these documents that contain valuable data. Regulatory response to this problem have been the penalization of the use of such documents for purposes other than the election and regulations providing for the maintenance of archives of the information obtained by each political group. In this way, people or entities using this data for commercial purposes can be more easily tracked and held to account.

In addition to the above public support, political parties and candidates can often send electoral materials or print ballot papers at very low rates or even for free. In some cases, political parties and candidates may be reimbursed for the printing of electoral campaign materials by being granted an amount of money per actual shipment.

The election campaign is limited to a relatively short period of time. This means that any legal dispute arising between the contenders must have a rapid and definitive resolution, because otherwise it would prejudice the electoral process. This is the main reason for the broad decision making powers attributed to electoral management bodies and for the establishment of accelerated procedures for adjudication. However, the final control of such decisions poses a new problem; the prevention of judicial review is an exception to the traditional structure of judicial control and even to the concept of the separation of powers, but in order to be effective, petitions should be resolved within a short deadline.

iv. Freedom to Campaign

“Campaigning as part of a genuine election process requires that a number of related rights and freedoms be enjoyed, for example the freedoms of expression, association, assembly, and movement.”[ix] To give effect to these international principles, the domestic legal framework should establish the right to open and fair campaigning.[x]

It is essential that, “The legal framework should state in clear language what type of conduct and behaviour is prohibited during the electoral campaign.”[xi] The intent is not to limit freedoms of expression, association or peaceful assembly but rather to prohibit behavior that could impede these fundamental freedoms enshrined in international law. Sometimes in addition to statute, codes of conduct are arrived at by political actors often with the assistance of the electoral management body, however just as with legislation the provisions, codes of conduct, “should not be unduly restrictive and should provide the opportunity for active and open campaigning, free from interference.”[xii]

Law enforcement at times will be necessary to ensure both the freedom to campaign and the enforcement of reasonable limitations such as where demonstrations become violent. However, “While the authorities are responsible for providing a safe and secure environment for campaign activities, security concerns should not be misused as a reason to abridge fundamental freedoms.”[xiii] The primary obligation of law enforcement agencies should be act in a politically neutral manner and protect citizens from election-related violence, intimidation and coercion.[xiv] Timely and effective judicial redress should be available where rights are violated or unreasonable restrictions are applied.[xv]

In addition to legal sanctions and enforcement mechanisms, it is preferable that the legal framework also provide a more flexible mechanism such as an advisory committee coordinated by the electoral management body allowing, “the stakeholders to exchange views with each other or raise complaints of violations of campaign provisions or codes of conduct with a view to finding a common approach to resolving them and containing electoral violence.”[xvi]

Political Financing

One aspect where the need for public controls to foster equal opportunities is most clearly reflected in electoral law relates to the funding of the electoral campaigns; political finance is a vital issue for democracy, governance, and development. No matter how flawless are the country’s elections, how active its civil society, how competitive its political parties, and how responsible its local authorities, the role of money in politics undeniably influences the quality of democracy and governance.[xvii]

Among other publications, Political Finance Regulation: The Global Experience. International Foundation for Electoral Systems (IFES 2009) and Political Finance Regulations Around the World: An Overview of the International IDEA Database. (International IDEA 2012) are excellent resources to augment the following high level review of what is a very broad, complex and changing subject.

i Funding Political Parties and Candidates

Multiparty elections are a characteristic of democratic elections and it stands to reason that in order for political parties and candidates to present alternate choices to voters, those political entities must have financing adequate for election campaigns and annual activities.[xviii] Private and public funding are two channels for such financing.

1. Private Contributions

Private contributions are a legitimate way to finance the operational and campaign expenditures of political parties and candidates, however, the public policy concern is that, 'campaign financing may come with strings that attach the party or the candidate to the donor. To prevent legitimate campaign funding from transgressing the line and becoming a non-legitimate method of influence, some regulatory measures are needed.'[xix]

The main sources of private funding are:

• Membership subscriptions

• Donations to political parties or candidates by individuals

• Funding by institutions such as large business corporations, trade unions etc

• Contributions in kind by supporters.[xx]

It is quite common to establish restrictions on private funding of political entities. Such restrictions may be in the form of source and/or amount. However, it is important that, 'Any limits on fund-raising and campaign spending should not be so stringent as to render candidates unable to pay for basic campaign costs.'[xxi] The same notion applies to political parties. Candidates and political parties must have the ability to communicate effectively with the electorate; this is as important to the free choice of voters as it is to political entities.

In terms of amount, reasonable limits on private contributions are often a part of the legal framework. However, what is 'reasonable' is heavily influenced by the context in which the election takes place and depends, 'on the type of election and factors unique to the particular country, such as geography, demographics, and relative costs of media and other campaign materials.'[xxii] However, while more common in Europe, globally 55% of countries do not limit the amount of contributions that may be given to political parties or candidates.[xxiii]

Source restrictions may include a prohibition on receiving donations from public or semi-public entities, as well as from foreign states, organizations, companies and individuals. Some legal provisions contain more specific rules, such as the prohibition of donations from religious associations. In a similar way, anonymous donations and money from unknown sources are often prohibited or limited to very small amounts.

Globally, bans on foreign contributions are quite common. In the case of political parties, 68% or countries and in the case of candidates, 51% of countries ban donations from foreign sources.[xxiv] Only 22% of countries ban corporate contributions.[xxv]

One variation of source restriction of private contributions is found in frameworks that deny direct contributions to political entities in favour of private political contributions being aggregated in a public pool and then redistributed to political participants based on a formula. In effect, the contributor will then be contributing to both the desired recipient and competitors and for this reason such a scheme should be carefully evaluated as to whether it amounts to a violation of a person’s rights to free association and expression.[xxvi]

Donations should be publicly disclosed.

2. Public Funding

Public funding of political parties and candidates may take many forms. For example, the previous section on the electoral campaign included a discussion of the provision of state resources to candidates and political parties. In other countries public funding of political parties and candidates is direct, for example, in the form of an annual payment. A further example of public funding is the reimbursement of the partial value of candidate and political party election campaign expenses usually where the candidate or political party demonstrates a certain level of support in the election. In other cases, indirect state funding may be provided in the case of tax receipts issued to encourage private political contributions.

In many countries where it occurs, annual public funding for the administration of the ordinary activities of political parties often constitutes more than fifty percent of the parties’ annual budgets.

Generally, where public funding occurs, "the aim is both to enhance the positive role played by political parties and to help curb some of the excesses of money in politics.'[xxvii] Thus it is an acceptable practice for a legal framework to provide for the campaign financing of parties and candidates.

Among the positive outcomes anticipated to flow from public funding are; an increased ability to communicate resulting in a more informed electorate, a more level playing field of electoral competition, increased institutionalization of political parties, reduction in corruption and the role of money in general and, influencing party behavior regarding such things as transparency and gender equality. Possible downsides include; delinking parties from the people, failure of the party system to adjust to new trends in support, governing parties solidifying their position and generally the unpopularity of direct public funding.[xxviii]

Early instances of public funding for political parties include Uruguay, Costa Rica and Argentina in 1928, 1954 and 1959 respectively and introduction in Europe (West Germany) in 1959.[xxix] Of a 175 multi-party system countries for which information about direct public funding is available, 58% have legal provisions for some form of direct public funding to political parties.[xxx]

To satisfy international standards, public funding should be determined on the basis of pre-determined objective and reasonable criteria which result in equitable funding of political entities and which must be applied in a non-discriminatory manner.[xxxi] Often, such criteria for the allocation of direct public funding are based on a proportion of actual campaign expenditures, the proportion of votes received in the previous election or the number of each party’s seats held in the legislature.[xxxii]

Where there is public funding, it is critical that the criteria for equitable distribution and key definitions (such as 'campaign expenses' where there is reimbursement) are clearly established in the legal framework and that the framework is then applied equally and without discrimination.

Worldwide, 116 countries provide direct public funding to political parties, including the vast majority (86%) of European countries.[xxxiii]

Overall, "The notion of public funding adds a positive approach of assisting the capacity of political contestants while simultaneously countering the perverse impacts that public funding may have."[xxxiv]

ii. Ceilings on Campaign Expenditures

Controls on the amount of election expenditures incurred by political parties and candidates are common to many countries and primarily intended to encourage competitive elections. Specifically, "limits on party and campaign expenditures are used to avoid excessive increases in the cost of party politics, control inequalities between parties and restrict the scope of improper influence and corruption." [xxxv] In other jurisdictions, however, expenditure limits are regarded, "as an unconstitutional curtailment of the fundamental right to freedom of speech and expression." [xxxvi] As such, spending limits, "contribute to a conflict between two fundamental principles of modern liberal democracy – the need to secure political equality and the need to secure political liberty." [xxxvii] Nevertheless, the HRC recognizes that 'reasonable limitations' on campaign spending may be justified to ensure the free choice of voters is not distorted by disproportionate expenditures among candidates or parties.[xxxviii]

Although the first examples of limiting campaign expenses of parties were observed in the UK in the late nineteenth century, these measures are now encountered in many states. The principal aim is to limit the excessive cost of campaigns, in the context of frequent scandals related to improper funding of political parties. On the one hand, to participate in a democratic election, the limit must be high enough to allow effective communication with voters but on the other hand, in excess, 'there is no minimum standard that requires that electoral contestants be given an opportunity to buy an election.'[xxxix]

Furthermore, ceilings on campaign expenditures aim to prevent political parties with greater financial resources from dominating electoral campaigns and ensuring their success through high expenditures, thus marginalizing small political parties.

Therefore, in reality, taken together these rules may be understood as an auto-limitation of the big parties, rather than as a way to allow the participation of political parties with limited financial resources.

Despite the best intentions of regulation of this subject within the legal framework, experience also shows that the imposition of unreasonably low limits, such as those for the presidential elections in Russia, may provoke illegal financing of political parties. This is a factor that should be taken into account when regulating this matter.

One other aspect related to expenditure limitations is the matter of so called 'third party' spending by individuals or groups that are not a part of a political campaign but who may spend money to either promote or oppose a particular candidate or political party. When introducing expenditure limits, the legal framework should consider whether 'third parties' should also be subject to expenditure limitations in order to avoid an unbalanced situation where expenditures of political entities are limited but 'third party' spending to defeat or elect candidates and political parties is unlimited. This is not necessarily easily accomplished, for example in the U.S., Citizens United v Federal Election Commission (2010), the Supreme Court held that constitutional guarantees of freedom of speech prohibited the government from restricting independent political expenditures by corporations and unions.

Another, indirect, but very effective way to limit electoral campaign expenditures is the limitation of the electoral campaign period, which is also in line with the new reality of the mass media. A campaign period of two weeks can be considered as minimum.

Where limits are placed on campaign expenditures it is absolutely critical that a clear and specific definition of 'campaign expenditures' is included in the legal framework. Practice shows that it is also important to provide the electoral management body with interpretive or regulation making power regarding what is considered a campaign expense because campaigning techniques and requirements are constantly evolving and to be effective so too must the definition in order for limits to be effective and so that all political actors are well aware of the rules.

Globally, only 29% of countries limit political party expenditures although candidate expenditures are limited in 44% of countries.[xl]

iii. Disclosure and Reporting

Disclosure, or transparency, is another element in the regulation of political finance. In fact, it can be argued that transparency is the key element of regulation because effective disclosure is required for each of the other regulatory mechanisms to function properly.[xli]

The notion of transparency is codified in the United Nations Convention against Corruption (UNCAC) which calls on all countries to strive to, 'enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties' (article 7(3)).[xlii] UNCAC was adopted by the General Assembly in 2003 and came into force in 2005. On hundred and forty states are signatories to UNCAC.

The legal framework should establish periodic reporting of contributions and other income as well as expenditures as, 'Legitimate limitations on campaign expenditures are meaningless without reporting and disclosure requirements.'[xliii]

Globally 88% of countries have some financial reporting from political parties or candidates but only 53% require both to report which suggests a potential loophole.[xliv] Further emphasizing the potential for underreporting, a gap between formal rules and practical application may result in a much higher de facto lack of effective oversight.[xlv]

Financial disclosure reports should be filed with the political finance regulatory body established in the legal framework for such matters and once filed every effort should be made to ensure that the information is available to the public in meaningful ways. However, over 25% of countries that do require some form of reporting from political parties or candidates do not require that information to be made public.[xlvi]

Auditing of financial disclosure reports is a common practice in some countries and which adds value to the credibility of the reports.

While common approaches and themes do emerge, the context in each state and the differing normative objectives lead to the conclusion that, "there is no model political finance disclosure system." [xlvii]

iv. Monitoring and Enforcement

Approaches to monitoring and enforcement vary across countries but there is some consensus on basic issues including, " the independence of political finance regulatory bodies, the need for sanctions, monitoring of party and campaign finance, and a clearly defined legal framework." [xlviii]

The agency responsible under the legal framework for the enforcement of political financing laws may be the electoral management body, or a specialized board or commission or located in the judicial branch of government. Globally, it is not uncommon and, may occur in 25% of the cases, that countries do not formally specify an agency to monitor financial returns or investigate potential violations of political financing laws.[xlix] This, plus other dynamics, leads to the observation that, often there are too many laws and too little enforcement.[l] While decisions to prosecute must be based only on the available evidence, 'At the same time, failure to prosecute electoral offences can undermine confidence in the election and encourage further offences.'[li]

In terms of enforcement, the possibility of civil and / or criminal penalties for non-compliance with the above rules should be clearly set out in the legal framework and should be proportional in terms of the gravity of the offence.[lii] There is also the possibility to cancel a candidacy or the election of the affected candidate, accompanied by a possible deprivation of the right to participate in future elections. Finally, the legal framework may provide for further civil or criminal liability and, in less serious cases, for a proportional reduction of public funding. Political parties and candidate financial regulation,' is an area in which enforceability is critical to the credibility of the effort to control political corruption.'[liii]

In conclusion, money in politics and the recognition that money in politics should be addressed in some manner or another by the legal framework is phenomenally consistent throughout the world. A 2012 global study published by International IDEA found that all countries in the world have some regulations regarding the role of money in politics.[liv] The nature and objectives of such regulation, however, as might be expected varies tremendously and, ' the international community has not yet endorsed more detailed working standards; hence despite the importance of money in politics, it remains difficult to establish a legitimate global yardstick to evaluate financial practices.'[lv] However, it is reasonable to keep in mind that regulation essentially intends to encourage healthy multiparty democracy and, " Regulation must not curb healthy competition." [lvi]

An additional observation is that, " Global experience also clearly indicates that regulation and monitoring by government agencies is not sufficient, an active civil society and vigilant media is necessary if effective oversight is to be achieved." [lvii]

[xvii] International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 13.

[xviii] International IDEA, International Electoral Standards, 65.

[xix] European Commission and NEEDS, Compendium, 12.

[xx] International IDEA, International Electoral Standards, 67.

[xxi] OSCE, Election Observation Handbook, 61.

[xxii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 32.

[xxiii] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

[xxiv] Ibid., 10.

[xxv] Ibid., 10.

[xxvi] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

[xxvii] Magnus Öhman, 'Public Funding of Political Parties and Election Campaigns.' In International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience (United States of America: IFES, 2009), 57.

[xxviii] Ibid., 73-74.

[xxix] Ibid., 57.

[xxx] Ibid. 59.

[xxxi] International IDEA, International Electoral Standards, 66.

[xxxii] Ibid., 66.

[xxxiii] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

[xxxiv] Magnus Öhman, 'Public Funding of Political Parties and Election Campaigns', 77.

[xxxv] Marcin Walecki, 'Practical Solutions for Spending Limits.' In International Foundation for Electoral Systems (IFES). Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 46.

[xxxvi] International IDEA, International Electoral Standards, 68.

[xxxvii] Marcin Walecki, 'Practical Solutions for Spending Limits', 47.

[xxxviii] DRI and The Carter Center, Strengthening International Law, 37.

[xxxix] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

[xl] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

[xli] Magnus Öhman & Jack Santucci, 'Practical Solutions for the Disclosure of Campaign and Political Party Finance.' In International Foundation for Electoral Systems (IFES). Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 27.

[xlii] IFES, Political Finance Regulation: The Global Experience, 13.

[xliii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

[xliv] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

[xlv] IFES, Political Finance Regulation: The Global Experience, 13.

[xlvi] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 11.

[xlvii] Magnus Öhman & Jack Santucci, 'Practical Solutions for the Disclosure of Campaign and Political Party Finance.', 41.

[xlviii] Hani Zainulbhai, 'Practical Solutions for Political Finance Enforcement and Oversight.' In International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 98.

[xlix] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

[l] International IDEA, International Electoral Standards, 68.

[li] European Commission, Handbook for European Union Election Observation, 60.

[lii] International IDEA, International Electoral Standards, 67.

[liii] ACE Electoral Knowledge Network, Encyclopaedia. Parties and Candidates Financial Regulations, Website.

[liv] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 11.

[lv] Pippa Norris, 'Are There Global Norms and Universal Standards of Electoral Integrity and Malpractice? Comparing Public and Expert Perceptions,' Faculty Research Working Paper Series (Harvard Kennedy School, March 16 2012), 5.

[lvi] IFES, Political Finance Regulation: The Global Experience, 16.

[lvii] Ibid., 13.

Election Integrity

In broad terms, ‘electoral integrity’ refers to, “agreed international principles and standards of elections, applying universally to all countries worldwide throughout the electoral cycle, including during the pre‐electoral period, the campaign, and on polling day and its aftermath.” [i] This definition highlights a couple of notions that have been present throughout discussion of the legal framework, namely; that no country can export its legal framework to another country, as context plays an important role in the application of international standards and, that elections must be understood as comprising all the components of the cycle and not just election day or the election campaign. In this sense, election integrity is a daily obligation to be strived for.

Election integrity is closely related to moral integrity and responsibility on the part of the various political actors, election officials and public opinion makers acting together in order to achieve free and fair elections. Generally speaking, as in several Latin American countries, the fundamental ethical principles and values regarding electoral democracy are guaranteed by various legal orders and therefore violations may entail liability. However, there are other ethical values and principles which, even if they are not necessarily prescribed by law, have governed -or should have governed- the transition and democratic consolidation processes. This is especially the case in Latin America during the last two decades.

The establishment and consolidation of a democratic system requires constant learning and reinforcement of the values of participation, stability, plurality and peace, as well as the exercise of rights and legality, the deployment of self-interest and auto-limitation, competition, cooperation and tolerance. This learning process leads to the recognition of mutual rights and obligations, to the acceptance of the values of plurality and diversity, and to the renunciation of dogmatic principles and political Manichaeism. This learning process also leads to the formation of political parties and tendencies that are aware of the scope and limits of the proper democratic competition, in which no one can be above the law or invoke privileges over the majority. Indeed, eventual majorities should always be perceived as a part, not as a whole, and, therefore the rights of minorities must be fully respected, including their right to become a majority.

A serious view of the role of integrity in politics leads to the belief that not only should the electoral institutions and political actors (parties and candidates) take on an ethical role, fully recognizing democratic rules, but also the media have an ethical responsibility towards the society. After all, society is informed about politics and assesses democracy through media such as radio, especially through television and increasingly through the internet.

The place of the media has a universal dimension and is present in all modern democracies. Thus, questions about the role of media in democracy and in election integrity are not random or secondary issues. In fact, reflecting on the relationship between media and politics is an essential task in order to consolidate democratic change and improve the quality of our democratic coexistence. These matters should undoubtedly be taken into consideration by the legal instruments.

The need to establish codes of ethics or conduct, which would complement the respective legal orders, has arisen in practically all fields of human activity. At the international level, there are several collective efforts aiming to prevent the misuse of the professions through the implementation of codes of conduct and universal application by various international organizations and professional associations.

In Latin America, several countries have adopted codes of ethics or conduct related to electoral processes such as: Argentina (applicable in two of its provinces: Code of Ethics for Judges and judicial officers of Córdoba and Code of Ethics of the Judicial Authority of the Province of Santa Fe, taking into account that electoral petitions in Argentinian provinces are usually resolved by the respective judicial authority); Colombia (Oath of Ethics, which is applicable to the National Registry of Civil Status, which is in charge of voter registration); Costa Rica (Code of Ethics of the Judicial Authority and Professional Code of Conduct of Lawyers, considering that as a complement to the relevant functions of the Supreme Electoral Tribunal of Costa Rica, which is autonomous, the Constitutional Chamber of the Supreme Court of Justice has jurisdiction to protect certain fundamental political and electoral rights and to rule on other relevant constitutional issues); Guatemala (Ethical Standards of the Judiciary of the Republic of Guatemala, considering that the Supreme Court hears objections on grounds of unconstitutionality against decisions of the Supreme Electoral Tribunal which organizes elections and resolves electoral disputes); Honduras (Code of Ethics for Civil Servants and Judicial Employees, while the Supreme Court Justice also hears certain challenges against rulings of the Supreme Electoral Tribunal which has administrative and judicial powers in this regard); Mexico (Code of Ethics of the Federal Judicial Power and Statute of the Professional Electoral Service and the Federal Electoral Institute Staff ); Nicaragua (Electoral Ethics Regulation); Panama (Code of Ethics of the Electoral Tribunal of Panama); Peru (Democratic principles for officials and employees of the National Office of Electoral Processes); Puerto Rico (Regulation of Government Ethics and Norms of Judicial Ethics for the Supreme Court) and; Venezuela (Draft Code of Ethics for Venezuelan Judges) and; the Statute of the Ibero-American Judges (approved by the VI Ibero-American Summit of Presidents of Supreme Courts and Tribunals; as in several countries in the region its jurisdiction in electoral matters prevails over the respective national Supreme Courts or the corresponding specialized courts like in Argentina, Brazil, Mexico , Paraguay and Venezuela).

International organizations may similarly adopt codes of ethics or conduct. The International Institute for Democracy and Electoral Assistance (International IDEA) has adopted both a Code of Ethics and a Code of Conduct for Ethical Election Observation. International IDEA’s Code of Ethics sets out "universal minimum standards" regarding "election administration and professional ethics." This code of conduct aims to systematize the principles that should guide the conduct of election officials. In addition, this code establishes ethical principles that form the basis of the electoral administration and aims at ensuring both the appearance and the actual integrity of the electoral process. Thus, it is stated that election administration should conform to the following fundamental ethical principles: a) Respect for the law b) Impartiality and neutrality c) Transparency d) Accuracy and e) Voter-oriented.

In addition, there is the, “the indispensable role of public confidence in democratic elections.”[ii] The extent of integrity, and perceived integrity, in the electoral process will heavily influence public confidence. From time to time it may be expected that challenges and scandals will emerge. This is true in consolidated and transitional democratic countries alike although in consolidated democracies challenges to electoral integrity may be less damaging than in less consolidated democracies where such challenges may be more corrosive and potentially destabilizing.[iii] Having said this as a broad outline, certainly consolidated democracies may also face very significant challenges such as was the case for example with the Watergate scandal.

Electoral laws should recognize and encompass ethical principles and regulate in a way that contributes to the integrity of the electoral process because, “Only upon its firm foundation can legitimate elections be built and in its absence voters can have little trust in their representatives or government.”[iv]

Electoral Dispute Resolution

It is almost inevitable in the course of electoral competition that disputes will arise and so effective electoral dispute resolution mechanisms are vital because such disputes, “have the potential to undermine the integrity of the electoral process and lead to either overt or covert social conflict.”[i]

According to both legal-electoral theory and political science, the “System for the Resolution of Electoral Disputes” refers to the system of appeals through which every electoral action or procedure can be legally challenged. Legal appeals related to electoral issues can be submitted before judicial or political agencies. Such a system aims at ensuring regular and completely legal elections. Legal elections depend on legal corrections of any mistake or unlawful electoral action. Therefore, the system’s aim is to ensure real protection for and effective enforcement of the political rights to elect or to be elected. To do so, the system ensures to all participants (political parties, citizens and candidates) that the voter’s decision will prevail. The system aids in the protection of certain values that support every electoral action and every electoral procedure as follows:

The whole system is based on an overriding principle: the judicial agents in charge of sorting out electoral controversies must be independent, impartial and technically proficient in order to ensure constitutional resolutions.

The system for the resolution of electoral disputes in modern democracies is fundamental to build up stable political systems and to build up a regular legal system as well. The system’s contribution to protect fundamental rights and to strengthen the democratic governance of any country is evident. The legal framework should therefore clearly state that every voter, candidate, and political party has the right to lodge a complaint with the competent election commission or court, require that body in turn to render a prompt decision and provide for the right to appeal to the court of last resort.[ii]

The legal system should also ensure that the complaints system is transparent, understandable and free of unnecessary obstacles, particularly high cost.[iii] Transparency also needs to respect the need for confidentiality during investigation and internal decision making but to the extent possible the reporting on general progress is encouraged and most importantly the final adjudication should be fully public.[iv]The judicial resolution of electoral disputes has become a fundamental feature of any electoral democracy, not only for those countries undergoing democratic transition and consolidation, but also for those countries whose democracies can be seen as both advanced and mature.

From a historical point of view, the initial trend within democratic constitutionalism to empower parliamentary electoral colleges in both Europe and America has been diverted; electoral controversies are now sorted out by judicial institutions.

In Latin America for instance, the Uruguayan Electoral Court and the Chilean Electoral Qualifying Court were created in 1924 and 1925, respectively; in the decades following those years, especially during the second half and last quarter of the twentieth century under the so-called “third wave”, other countries in this region of the world, followed the Uruguayan and the Chilean examples. Mexico created the Federal Electoral Tribunal of the Judicial Branch in 1996.

In Europe, since 1879 the British system empowered a couple of judges of the King’s (currently Queen’s) Bench Division at the High Court of Justice to solve electoral disputes. In 1919, according to its own constitution, Austria provided the Court of Constitutional Justice with such powers. Besides, France empowered its Constitutional Council in 1958 and Spain, when civil rights where involved, empowered the Constitutional Tribunal in 1978.

Indonesia empowered its Constitutional Court to sort out electoral disputes in 2003.

The relevance of electoral courts in charge of reviewing the constitutionality and legality of elections can be fully understood by mentioning some of their rulings:

In Mexico, elections aimed at electing governors (Tabasco in 2001 and Colima in 2003) were declared null and void, and historical fines were imposed upon national political parties (2003). The Argentinean Supreme Court of Justice nullified the primary elections of the Justicialista Party (2003). A ruling from the Electoral Tribunal of Paraguay adjusted the percentage and location of electronic voting machines to be used in general elections (2003). The electoral courts of Guatemala reviewed the presidential aspiration of Efraín Ríos Montt (2003), just as the electoral courts of Venezuela did in respect to the presidential referendum aimed at removing the President from office (2003-2004).

The United States Supreme Court also played a decisive role at the 2000 presidential contest. Similarly, the Spanish courts in charge of sorting out electoral disputes, delivered important rulings such as declaring both illegal and unconstitutional those political parties apparently related to terrorist groups (2003). The role played by the Central Electoral Agency between March 11^th and election day (2004) is also worth mentioning. The Supreme Court of Justice of the Russian Federation made a very important distinction between broadcasting general information and electoral advertisement (2003-2004).

The previous precedents fully prove for democratic societies of the 21^st century the significant role played by the electoral justice system and the protection of the fundamental right to legal elections.

Judicial systems for electoral disputes resolution uphold many judicial principles established by the rule of law, such as the existence of independent and impartial judges or tribunals, legally empowered and in charge of reviewing legal appeals. Such principles are recognized by international rules aimed at protecting human rights, such as those contained in articles 2, section 3, paragraph a) and 14, section 1 of the International Covenant on Civil and Political Rights, or those contained in article 8, section 1 of the American Convention on Human Rights.

Even those countries that have not provided courts with electoral reviewing powers are nonetheless supposed to accomplish these duties. Such is the case of Nicaragua and Dominican Republic where the electoral reviewing powers are vested in executive but independent agencies. It is also the case of Argentina, where some cases are sorted out by executive agencies and reviewed by political institutions.

Different Systems for Dispute Resolution

Processes to resolve disputes, “are well established in international law through the rights to an effective remedy and the right to a fair and impartial hearing”[i] and although international law has not explicitly tied these concepts to electoral disputes the same rights are generally held to apply. However, in terms of international standards, the following are suggested as guidelines for the design and administration of complaint adjudication systems:

Electoral laws establish different systems for the resolution of electoral disputes. This is to be expected as just with other aspects of the electoral process the, “electoral frameworks and administrative practices for election complaints adjudication must be based on the unique cultural, political and legal traditions in each country. No single approach or model works everywhere”.[iii]

Such diverse systems can be classified according to the nature of the top institution in charge of undertaking the legal review of electoral actions and electoral procedures alike. While the procedures for dealing with complaints and appeals vary among countries they will be expected to provide for a hierarchical right of appeal.[iv] Clear and hierarchical processes of the right to appeal also helps, “avoid the potential for a complainant to appeal to the body considered likely to offer the most favourable consideration of the complaint. It can ensure that all complaints are addressed in a consistent manner.”[v]Different systems can be distinguished as follows:

Therefore, based on the methods and institutions established by modern electoral legislation, there are two core distinguishable models of resolution of electoral disputes: political systems are those carried out by political assemblies, and judicial systems are those carried out by judicial or by quasi judical institutions. In addition, there are alternative systems for the resolution of electoral disputes that have been usually adopted by emergent democracies. Such systems involve the intervention of international agencies empowered to resolve electoral disputes.

Judicial systems can be also be distinguished from each other. The criteria to do so is based on the nature of the Court empowered to sort out electoral disputes brought before it. There are systems in which ordinary courts (i.e. the judicial Branch of government) review electoral disputes. In some other places, specialized tribunals (external or internal to the Judicial Branch of Government) undertake such a responsibility (such is the case of so-called electoral courts or tribunals prevailing in Latin America). Finally, there are some places in which constitutional courts are empowered to sort out electoral disputes. It is important to note that the idea of vesting the powers to sort out electoral disputes in non-ordinary courts is aimed at preventing ordinary judges from getting involved in political disputes or being subject to political parties’ pressure.

Electoral Judicial Review must be generally seen as composed of the legal disputes derived from electoral actions or resolutions taken by executive officials. Such disputes are brought by two contesting parties before a court or before a tribunal that is empowered to act as a referee in order to sort out such disputes in an imperative and impartial way.

There is a clear trend aimed at setting down different systems of judicial review regarding elections. Such systems can be distinguished according to the nature of the court that is empowered to sort them out. Electoral disputes can be brought before ordinary judges (as is the case for Canada and Great Britain); before an specialized area within the Judicial Branch of Government (as is the case for Argentina, Brazil, Mexico, Paraguay and Venezuela); before specialized and independent courts (as is the prevailing case for so-called electoral courts in Latin America); or before constitutional courts (as is the case for Austria). As each country develops systems in its own unique context the result is often, “a coordinated mix of election administrative and election complaints adjudication duties, including specialized responsibilities.”[vi]

Whichever systems are adopted, it is very important that the legal framework is clear because, “Ambiguous or conflicting jurisdictions among courts and administrative bodies are confusing and unfair to political parties, candidates, the news media and the voting public.”[vii] For example, systems that allow the choice of venues to appeal (as is often the case in the former Soviet Union and new democracies in Eastern Europe) may result in counterproductive results including duplication, dual appeals, institutional rivalry and ‘forum shopping’.”[viii]

Legislative Model

In some cases where legislation has not followed the dominate trend towards a full judicialization of electoral processes (which demands that electoral disputes must be sorted out by an impartial referee), either Congresses or elected legislators are empowered to validate the contested election. In France, such processes are known by many different names such as “power verification”, “election qualification” or “certification”. In Mexico, such empowerment was erroneously known as “self-qualification”. The verification of powers, also known as election qualification refers to the examination of the legality and validity of a certain election, which starts without any appeal whatsoever. Such verification is aimed at reviewing the electoral results and whether the elected candidate fulfills all eligibility requirements to be legally elected or not. Such verification is distinguished from the appeal used to challenge any unlawful activity performed during elections. There is a historical argument behind the legislative model based on the principle of checks and balances, which can also help to distinguish that model from the judicial one. According to this principle whereby all branches of government must be seen as independent from each other, no branch of government can intervene in the functioning of the others. Bearing this in mind, the argument runs as follows; since the legislative branch has to be independent, it must be protected from any kind of intervention by the executive. Likewise, the principle aims at preventing any kind of damage to the judicial branch, which has to be kept outside the political arena. The objective of the judicial branch is to sort out all legal disputes submitted before it by means of its technical skills.

Such is the classic political model. However, we can find a judicial perspective at the origin of British parliamentarianism. Electoral appeals in the fifteenth century under Henry the Fourth of Lancaster were sorted out by the Chancery (which can be seen at the origin of the equity courts). The Chancellor was a high ranking officer of the Crown and was the King’s Counselor. Eventually, the Chancery’s Courts had the power to modify electoral counting. However, in 1604, the Parliament nullified an electoral ruling issued by the Chancery tribunals (in doing so, the Parliament ignored King Jacob the First’s inconformity), thus establishing a precedent according to which members of Parliament were empowered to judge their own elections. Such powers were valid until a legal reform came into force in 1868.

In the meanwhile France adopted the system for verification of powers vested in a political assembly. Such system ruled in that country from the general states (in the eighteenth century) to the fifth republic’s Constitution in 1958. The United States framed the Federal Constitution in 1787, which empowered political institutions to sort out electoral disputes. Such a regime was adopted by many emergent democracies during both the nineteenth and twentieth centuries. During those centuries, Latin American countries adopted the political system from the Cadiz Constitution’s model. The Mexican Constitutional Laws of 1836 and the Colombian Constitution of 1886 were the only cases in which the Cadiz Constitution’s model was not adopted. Mexican Laws provided the so-called Supreme Conservative Power with the authority of sorting out electoral disputes. On the other hand, the Colombian Constitution vested such power in counting judges.

There are almost no systems with an exclusively political model for the resolution of electoral disputes. As a matter of fact, even those countries that have preserved features of a traditional political control system, have also allowed different kinds of judicial intervention to take place, either ex-ante or ex-post. Such an evolution has turned them into mixed systems.

Among those mixed systems we can consider that of the United States. Federal elections in the United States, which are regulated and organized by state authorities, usually set down a system of legal appeals submitted to ordinary courts (in some cases specialized) which are reviewed by a political institution such as the House of Representatives (if a Representative’s election is at stake), the United States Senate (if a senator’s election is at stake) or the Electoral College (if the presidential election is at stake).

A similar design rules in Italy and Switzerland. On the one hand, article 66 of the Italian Constitution of 1948 establishes that both the House of Representatives and the Senate are empowered to judge not only on the “admission titles of their members”, but also on the reasons by which an unlawful election might happen. All complaints derived from executive orders are sorted out by the National Electoral Central Office which has the authority to organize elections. On the other hand, once the counties’ governments have finished both the electoral counting and the result’s verification, the Swiss Federation empowers the National Council and the States’ Council to sort out the elections of their members in a definitive way.

Regarding legal challenges against legislative and presidential elections, Argentina is another example of a mixed political-executive system for the resolution of electoral disputes. There, once the national electoral boards (which can be seen mainly as executive agencies composed by judicial officers) have ruled on the electoral results, a political institution is empowered to review their work. The Constitutional amendment of 1994 empowered the Congress to rule on the direct elections of the President and the Vice-President of the Republic. The congressional elections are reviewed by both the Chamber of Deputies and the Senate, which in those cases are turned into “electoral courts for the validity of the rights and titles of their members”. The rulings issued by those institutions cannot be further challenged.

Moreover, some Central European and Eastern European countries, such as Hungary, have preserved the self-qualification system, in spite of the sensitive political change from socialism to democracy.

Judicial Court Model

The model of ordinary justice, also known as the English model, provides ordinary judges of the Judicial Branch with the power to resolve electoral disputes. Sometimes, ordinary judges resolve the disputes submitted to them. However, some other times, ordinary judges can also review electoral rulings issued by other institutions.

In 1868 a Parliamentary Act was enacted, aimed at preventing the abusive resolutions from the House of Commons, and was then modified in 1879. Such Act empowered two judges from the King’s (Queen’s) Bench Division of the High Court of Justice to judge electoral disputes. The House of Commons came to terms with the ruling of the appointed judges.

This model is based on the independence of the judiciary. The basic principles of judicial independence can be found not only in some parliamentary acts, but also in several international instruments such as: The Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.

As in England, this is the system prevailing in Canada where the ordinary jurisdiction is in charge of resolving electoral disputes. The electoral authority of the judiciary is combined with the functions of Elections Canada in organizing the elections and the corresponding Commissioner of Canada Elections.

Those who support the judicial model consider that the task of judging and qualifying elections has a judicial nature, and as such, it must be done by a judicial authority in order to guarantee the authenticity, regularity and validity of the election, preventing the officials in charge of organizing the election from acting as the qualifying authority as well. The risk becomes clearer if most of the officials carry out their duties according to political and party interests, ignoring law and justice considerations. From the perspective of the rule of law, the convenience of such an exclusive political control remains somewhat dubious.

Autonomous

The autonomous tribunals are specialized institutions prescribed by the Constitution that are not part of any of the three branches of power.

The fact that tribunals are not included either in the judiciary nor into the executive power, does not exclude them from the judicial review that guarantees a fair trial. On the contrary, the removal of the traditional powers, especially those elected by the voters, guarantee their independence in the resolution of electoral disputes and the qualification of the election.

The existence of an autonomous electoral tribunal is a huge step forward for those countries where the powers themselves were in charge of qualifying the lawfulness of their own elections. This is the first step to overcome the traditional model of conflict resolution based on political debate and become a new judicial system of dispute resolution based on legal procedures.

Autonomy can also be the following step after the integration to the judiciary. If that is the case, autonomy is beneficial if it is required by circumstances, provided that it does not affect the principles of the jurisdictional process. Thus, one of the benefits would be to prevent the judiciary from interfering in political matters.

In Latin America, judicial agencies are established in sixteen out of the eighteen continental countries. Nine of those sixteen electoral courts are autonomous (Costa Rica, Chile, Ecuador, El Salvador, Guatemala, Honduras, Panama, Peru, and Uruguay).

Part of the Judiciary

The electoral tribunals that belong to the judiciary power are judicial institutions specialized in electoral issues and ruled by a due process of law considerations.

However, such tribunals can be independent from any superior court. In Mexico, for instance, not even the Supreme Court of Justice has power to undertake further revisions of the electoral tribunal’s rulings. Therefore, ordinary courts must not interfere in electoral disputes.

The judiciary’s authorization to resolve electoral disputes derives from a clear aspiration; electoral disputes have to be resolved from a procedural approach which sticks with a commitment regarding binding, universal and fundamental principles.

Any tribunal located within the judiciary is vested with more powers than any tribunal that is not. Belonging to the judiciary power provides any tribunal with a higher degree of efficacy, which makes it more reliable.

Therefore, once a tribunal that belongs to the judiciary is empowered to resolve electoral disputes in an independent, autonomous, impartial and professional way, it ensures authentic, free and legal elections, and this is also the way in which a legitimate and democratic functioning of government must be achieved. Bearing this in mind, two different kinds of judicial principles can be distinguished. Firstly, we have the so-called organic principles, which are those related to both the Tribunal itself and the officials working there. Secondly, we have the procedural principles which are related to the electoral jurisdiction.

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) basically refers, “to any method that parties to a dispute might use to reach an agreement, short of formal adjudication through the courts.”[i]

The alternative models for the resolution of electoral disputes are structured in both a temporal and alternative way. The existence of alternative models implies the existence of an ordinary one which is not working, an ordinary one which is not producing the expected results. A main advantage of ADR is its flexibility and the prospects of providing more timely resolutions to complaints when compared for example to the courts system.

On the other hand it is arguable that just as with electoral management bodies, ADR may not satisfy international obligations of independence and impartiality to serve as a “tribunal” and so it is likely that the value of ADR is as a complement to other mechanisms to resolve disputes.[ii] Another limitation of ADR is its traditional focus on parties reaching ‘mutually acceptable settlements’ versus the more traditional ‘clear cut’ resolution associated with courts and the ‘winners and losers’ nature of elections.[iii]However, if properly designed, ADR can be particularly appropriate and effective in a transitional context where the legitimacy of state institutions is questioned or the institutions are weak and ineffective.[iv] In such circumstances, usually,, an alternative model for the resolution of electoral disputes is formed by special agencies composed of experts and endorsed by international agencies under the jurisdiction or the United Nations.

Under such circumstances those in charge of resolving electoral disputes have to take into account the legal and political customs from every single region. However, neither due process of law considerations, nor the democratic principles such as individual rights to free and fair elections must be ignored.

Alternative models for the resolution of electoral disputes have been successfully implemented in Cambodia, Bosnia and South Africa.

Over time, “In post-conflict countries, the gradual replacement of ADR by formal complaints adjudication will contribute to the deepening of democratic processes.”[v]

Appeals and Other Challenges

The analysis of each electoral appeal is a complex task. Such a state of affairs is derived from the confusion that prevails not only often in legislation but also in the academic realm (many times for instance, a clear differentiation between a mere appeal and a complete trial is not made). The naming process for reviews and appeals can be both anarchic and inaccurate (there are several examples which can be used to explain such an anarchic situation: sometimes appeals used to resolve similar disputes have different names, in other cases appeals do not have a name, the expression used in some countries to refer to an “administrative review” is used in other countries to designate a judicial process). Electoral appeals find in the vague regulation applied to them another conceptual weakness derived from the fact that many aspects of such appeals are regulated by different electoral or procedural legislation.

According to many opinions, electoral appeals are legal instruments which have to be used under the law to correct, modify, revoke or nullify executive orders or judicial resolutions that are deficient, mistaken or illegal.For illustrative purposes, the review of appeals and other challenges as well as the related section regarding election nullification will rely on essentially a case study of Latin America. This approach will demonstrate trends but also the great diversity in specifics as well as terminology that may be applied.

Classes

Broadly speaking, electoral appeals can be grouped within two different classes; administrative appeals and judicial appeals. In order to avoid the anarchic situation already referred to, it is helpful to adopt formal criteria in what follows. According to such criteria, both the ruling agency nature and denomination will be used to determine whether each appeal is administrative or judicial.

Administrative appeals are all legal instruments that can be used by an administrative agency in order to resolve electoral appeals filed by political parties, candidates and citizens against executive orders issued by electoral authorities. Administrative appeals are resolved either by the same authority or by a superior one.

Many countries authorize administrative agencies to solve all the appeals filed against their decisions (the National Registrar for the Civil State in Colombia in charge of issuing or revoking citizenship cards is an example just as the Electoral Supreme Council of Nicaragua can do in respect to appeals filed against its electoral counting). Some other countries authorize a superior authority to resolve the reviews filed against the orders issued by administrative agencies. Such is the case of the General Director of the Registrar for Citizens in Colombia who can review the orders issued by other departments under the General Director’s command. Such is also the case for the counting commissions of Colombia, which can review the appeals filed against the actions of voting juries. Such is also the case in Mexico’s Federal Electoral Institute, where a superior official can review orders issued by the Executive Secretary or by local or district offices.

In many regions electoral management bodies will be charged both with managing the electoral processes and resolving complaints. The real strength of this approach is the familiarity with the subject matter and processes held by the electoral management body but it can also be argued that there exists an inherent conflict of interest which precludes electoral management bodies qualifying as independent tribunals.[i] Such a process may also reduce the accountability of the management body if it hears appeals of its own decisions.

Judicial appeals on electoral issues are procedural instruments used under the law to file before a court any appeal aimed at challenging a deficient, mistaken or illegal order issued by an electoral authority.

Judicial appeals can be divided into three groups: procedural remedies, procedural reviews and appealing processes.

Procedural remedies are essentially, legal instruments aimed at correcting judicial resolutions which are filed before the judicial authority that issued such a challenged resolution. A typical procedural remedy is the clarification of a judicial opinion. Article 78 of the Internal Regulation of the Electoral Tribunal of the Federal Judicial Power in Mexico, empowers such Tribunal’s courts to either clarify a concept within the opinion or to provide a precise explanation of the resolution’s effects, provided such a clarification does not imply a substantial alteration of the resolution. In a very similar way, the Tribunal in charge of qualifying elections in Chile and the Electoral Tribunal of Panama are empowered to clarify their resolutions. The Electoral Tribunal of Guatemala can also do so whenever someone asks it to clarify a resolution that is hermetic, contradictory or not clear.

Procedural reviews are effectively appeals that can be filed within a procedure, usually before a superior court, against both procedural and definitive violations derived from a judicial opinion. Procedural reviews are the most important group of judicial appeals. They can be filed within a trial or just after its conclusion. According to the prevailing doctrine, procedural reviews in turn can be divided into three separate groups: ordinary reviews, extraordinary reviews and exceptional reviews.

The classic ordinary review, which has a universal aspiration, is simply known as an “appeal”. Through an appeal, a superior court that is usually a collegiate one, reviews the decision made by an inferior one. The superior court reviews all the files as well as all procedural and non-procedural wrongdoings in order to uphold, modify or revoke the challenged resolution. In doing so, the superior court can issue a substitutive ruling or a direct order to the inferior court which has to issue a new, valid and legal resolution.

Some examples within this group are as follows: the appeals filed against electoral judges and electoral boards which are resolved by the National Electoral Chamber of Argentina; the appeals filed against electoral departmental courts which are resolved by the Electoral National Court of Bolivia; the appeals filed against criminal judges’ resolutions on the denial of electoral registration or electoral exclusion which are resolved by the Chilean Court of Appeals; the appeals filed against the local juries for elections, which are resolved by the National Jury for Elections of Peru; and the appeals filed against the electoral boards’ resolutions which are resolved by the Electoral Court of Uruguay.

Extraordinary reviews are those that can only be filed on grounds that are authorized by procedural laws. Such reviews aim at determining whether a particular procedure or a judicial resolution is legal or not. Extraordinary reviews aim at challenging the legal reasons supporting the contested resolution.

There are many examples of countries in which extraordinary reviews are used. One of them is the so-called reconsideration review filed against the regional courts’ resolutions and which are resolved by the Superior Court of the Electoral Tribunal of the Federal Judicial Power of Mexico. The reconsideration review is used to challenge judicial resolutions already made regarding trials filed against the results of elections of both deputies and senators. Such trials’ lawsuits are only admitted when the final resolution can actually modify an election’s result.

Other examples include those countries in which the unconstitutionality of electoral courts’ resolutions can be appealed before a Supreme Court of Justice, as is the case in Argentina, Guatemala, El Salvador, Honduras, Panama and Paraguay. The appeals filed before the Constitutional Tribunal of Bolivia and the so-called constitutional electoral review filed before the Electoral Tribunal of Mexico to challenge the unconstitutionality of local electoral authorities’ orders can also be located within this group.

Exceptional reviews are those that can be filed to resolve quite complicated cases. Such reviews are filed against definitive rulings after the emergence of new and previously unknown circumstances that could nullify the reasons supporting the definitive ruling. Article 148 of the Costa Rican Electoral Code provides an example of an exceptional review as follows: “An election which has been already declared as a valid one can be challenged nonetheless if new grounds showing the winner’s inability to stay in Office appear”. Article 228 of the Venezuelan Voting Act seems to endorse an exceptional review as well. According to that article a nullification appeal can be filed at anytime on grounds of the winner’s inability to stay in office or whenever fraudulent actions, bribery or violence during the electoral registration, the elections or the electoral counting have taken place. The appeal will be admitted when such circumstances or wrongdoings could be predicted to result in a change in the electoral result.

Appealing procedures are legal instruments used to set off a new trial in which the resolution taken in a previous one will be reviewed. The main difference between appealing procedures and procedural reviews can be explained as follows: whereas a procedural review can be seen as an extension of an already existent trial, an appealing procedure is a whole new one. In fact, appealing procedures are derived from the challenge filed against the resolution made in a previous executive procedure.

Lawsuits that can be filed against executive orders related to electoral results issued by the Argentinean National Electoral Council are worth mentioning as are lawsuits that can be filed before the Fifth Section of the Chamber for Administrative Litigation of the Colombian State Council. Other important cases include the so-called “voter lawsuit” in Argentina or mandato de segurança in Brazil, which can be filed against every action aimed at curtailing the constitutional right to vote. The Argentinean lawsuit can be filed before the closest magistrate. The Brazilian lawsuit can be filed before an electoral judge, a regional electoral court or the Electoral Supreme Court. It is also worth mentioning the Chilean case where an appeal can be filed before the Electoral Qualifying Court against the final resolutions made by political parties in an internal way. In Mexico, a couple of trials are worth mentioning. First, the so-called inconformity trial and second, the trial aimed at protecting citizens’ political and electoral rights. Both trials are filed before the Superior Court or the regional courts of the Federal Electoral Tribunal of the Judicial Branch. The inconformity trial is activated to challenge every district counting or every state counting. The trial aimed at protecting the citizens’ political and electoral rights can be activated to challenge any violation against any citizen’s right to vote, to be voted, to associate to others, or to be registered in any civic association. In Venezuela the appeal used within the so-called “electoral litigation”, which is filed before the Electoral Court of the Supreme Tribunal of Justice, aims at challenging resolutions made by the National Electoral Council.

Reviewable Resolutions

There are different kinds of resolutions that can be challenged by electoral appeals. There are those resolutions related to both the electoral registration and voter identity; those related to the administration of political parties, which include any resolution related to a political party regime and its internal democracy; those related to preliminary activities for the election day; those related to electoral results; those related to electoral procedures different to those aimed at electing representative officials; and those related to any order issued by electoral authorities. It must be clarified that this classification has been made on analytical grounds, and does not match any particular electoral regulation. As a matter of fact, some resolutions related to the electoral registry can also be seen as a preliminary instance related to election day.

The voter register underlies the integrity of an election and may be expected to be the subject of complaints and inquires as to its accuracy. The resolutions within this classification that can be appealed, include all those made by the electoral officials in charge of registering voters, issuing voter identification cards (whenever such cards may have electoral effects) or voting cards (whether such a card includes the voter’s photograph or not), building-up the voters’ register (especially when the resolution unduly approves or dismisses a citizen’s request to be included in the register).

Electoral registers are different from voters’ lists. The system of appeals of the resolution of electoral disputes recognizes the distinction. Whereas citizens are authorized to file appeals against electoral registers, political parties are authorized to file appeals against voters’ lists.

Some argue that the legal framework should establish an exclusive venue for filing complaints and appeals in these limited matters so that each instance does not unnecessarily add to the burden of the courts.[ii]

Reviewable resolutions regarding political parties’ regimes can be distinguished as follows:

i. Declaration on the Unconstitutionality or Illegality of a Political Party and Resolution on the Approval, Denial or Nullification of a Political Party Registry

Reviewable resolutions are those related to the foundation, existence or extinction of political parties and to a political parties’ registry. The resolutions that deny, suspend, or revoke a political party’s registry can also be appealed.

Inspired by the German model, articles 15 and 82 of the Chilean Political Constitution empower the Constitutional Tribunal to declare unconstitutional any organization, including political parties, as long as such organizations are against democracy as well as against the Constitution.

Broadly speaking, a political party’s dissolution can take place whenever its members legally agree to do so according to the internal regulation of the party itself. Besides, a political party’s registry can be revoked by a judicial resolution issued under the law. There are several legal reasons according to which a political party’s registry can be revoked; one of them is when a political party no longer fulfills the legal requirements to be registered. Among such failures are the following: to have, at some point, less members than those required by law in order to be registered; to breach in a serious and systematic way specific legal duties; to present no candidates for one federal election (Mexico) or more (three elections in a row in Argentina); to receive less than the minimum percentage of votes required in an ordinary election (3000 votes in Costa Rica, 2% in Mexico, 3% in Bolivia, 4% in Nicaragua, 5% in Chile, 5% in Panama); to gain no congressional seats (Colombia); to undertake no primaries for some time (4 years in Argentina).

In Paraguay, some other grounds to support a political party’s extinction are listed as follows: to organize illegal armed forces; to attack democratic principles set down in the Constitution, the Electoral Code, the Universal Declaration of Human Rights, and other international treaties ratified by the country; to follow the commands of a foreign organization or a foreign government. Likewise, Bolivia revokes the registration of any political party whose participation in a military coup has been proved.

Any determination taken with regard to a political party’s public funding can also be appealed. Appeals can also be filed to challenge any ruling regarding a political party’s financial auditing process, whether such auditing is made on the source or the application of the financial resources. Financial auditing resolutions are also challengeable if they are related to campaign spending or to any campaign spending indictment. Any fine derived from financial wrongdoings can also be appealed.

All the Latin American constitutions and electoral legislation analyzed so far set down a system of appeals to ensure a democratic regime to rule political parties. In doing so, courts (electoral, constitutional or ordinary) are empowered to resolve political parties’ decisions related to their internal democracies. Appeals can also be filed to challenge any violation committed by any political party or endorsed by any electoral authority against the civil and political rights of any of its members.

-Nullity or rejection of non-democratic internal regulations. A majority of Latin American constitutions and electoral laws within the region establish democratic principles that have to be followed by political parties. They also allow political parties to determine a structure and an internal democratic regime on their own. Usually, those regulations can be seen as grounding some other political parties’ obligation such as the registration of the party’s statutes or the notification made upon the party’s statutes to electoral authorities and which is normally used by those authorities to review the statutes’ constitutionality and legality.

Usually, electoral courts (courts, councils, boards or juries) are empowered to resolve constitutional and legal controversies related to political party’s statutes. In those countries where the rulings issued by electoral tribunals are not definitive, the resolving powers are vested in the Supreme Court of Justice or in a constitutional tribunal.

In a general sense, any constitutional or legal regulation aimed at ruling the internal democratic regime of political parties as well as any court in charge of enforcing it face a clear challenge: the balance between the right of all members to participate within the party’s administration and the party’s right to organize itself in a free way. Of course, public powers must be prevented from exerting any kind of intervention within political parties’ internal affairs. However, the party’s members who are entitled to participate at the party’s administration restrict such a basic right.

-The election of political parties’ leaders and candidates. Frequently, political parties have a right to choose leaders and candidates on their own in a free and democratic way. However, there are sometimes some basic rules and principles that have to be followed according to any political party’s internal regulation.

Such basic principles sometimes include that the electoral authority is empowered to intervene within a political party’s primaries and internal elections. Some other times, courts are empowered to resolve the appeals filed against resolutions issued by political parties’ authorities.

-Punishments and Expelling members. According to due process of law any member of a political party is empowered to file appeals before a particular court (in Guatemala first the courts of appeals and then the Constitutional Court have powers to resolve such controversies) against illegal decisions taken by political parties that violate a right of the member, especially the right to associate with others. Whenever a member of a political party is expelled, due process of law demands that political parties to allow the member to file internal appeals before doing so at ordinary tribunals.

The judicial review of disciplinary rules applied by political parties has not been deeply explored from an academic point of view. Disciplinary rules applied by political parties must be seen not only as composing such parties’ right to administer themselves in a free way, but also as composing the party’s right to free association. Those rights aim at protecting the political party from any undue interference from any branch of government.

All the members of a political party are also entitled to the party’s right to free association and, therefore, they can only be expelled from it in a justified way. Otherwise, the affected member of a political party is authorized to file a formal judicial appeal against any wrongdoing whatsoever. Since political parties play a fundamental role in promoting the political activism of citizens and the development of democratic life, they are clearly obliged to protect individual rights.

From a procedural point of view, the court in charge of resolving the unfair expulsion of a member of a political party has to decide on different issues. The court has to decide on the constitutionality and the legality of the regulation applied by the party. Then the court has to determine whether the partisan authority that ruled on the case at hand had powers to do so or not. The court has also to determine whether different rights of the member such as the right to be informed about the charges against him, or the right to a due process were honored or not from a procedural point of view.

Unfairness within a disciplinary procedure leaves the affected member of the political party with no defense. Such a situation would represent a clear violation of a fundamental right.

At first sight, the review made on the content of the appealed decision seems to be aimed at determining whether the grounds on which the party’s decision was made are fair or not, are reasonable or not (such decision has to be proportional, never arbitrary) from both a legal and a statutory point of view. However, such a restriction to judicial review has an exception: whenever the political party’s decision violates at least one fundamental right for the affected member (such as the right to be voted, or the right to privacy or even fundamental social rights), courts can interpret and evaluate all relevant circumstances, even those which were not internally considered by the political party.

All orders related to electoral ballots, the candidates’ registry and the composition and location of voting sites can also be appealed.

Common complaints include, accessibility, long waits or congestion, inaccurate lists, refusal by officials to provide a ballot, double or underage voting, campaigning in or impermissibly close to the polling location and voter intimidation, tampering with or removal of a ballot box from public view or the insertion of fraudulent ballots.[iii]

Both electoral results and declarations on the inability of a particular candidate to be elected can be appealed. The validation of the election results and the declaration of winners can also be appealed. In some countries, the appeals filed against electoral results can be filed and must be resolved before the final counting, the election’s validation and the declaration of winners ruled by electoral tribunals (Costa Rica, Chile and the presidential election of Mexico) or by a political agency (Argentina). Any appeal filed after such events have taken place will not be admitted. For the majority of the systems of electoral litigation, the orders related to declaring winners or validating the election can be appealed after they have been issued. The resolution of such appeals is under the jurisdiction of autonomous electoral authorities or judicial authorities.

Many electoral authorities, such as the regional ones, are empowered to both review and resolve appeals filed against different kinds of elections (the election of municipal authorities, for instance). Even in some federal cases, local systems of electoral litigation are centralized while federal systems of electoral litigation (to resolve disputes derived from congressional or presidential elections) are vested in the federal authorities empowered to resolve the disputes derived from local or state officials (such as mayors or councilmen). An example of this is the case of the electoral regional courts in Brazil, the Electoral Chamber of the Supreme Tribunal of Justice in Venezuela, and the Supreme Court of Justice of Argentina which can resolve extraordinary constitutional reviews regarding local elections. The Mexican case is an instance of an opposite situation. In Mexico, each state is authorized to organize a system of electoral litigation to resolve state electoral disputes. Since 1996, every Mexican state has an Electoral Tribunal whose resolutions can be appealed using the so-called unconstitutionality appeal.

Many electoral tribunals in the region are empowered to resolve appeals filed against democratic procedures such as referendum or popular voting. The Chilean case of the regional electoral tribunals is interesting. Such tribunals are empowered to resolve appeals filed against orders affecting individuals entitled to run for a seat in the regional development councils or in the community development councils. It is also worth mentioning that the Superior Tribunal for Electoral Justice of Paraguay and the Electoral Court of Uruguay are empowered to validate different sorts of elections such as university elections. The Federal Electoral Tribunal of the Judicial Branch in Mexico is empowered to resolve labor disputes between electoral authorities and their workers.

Who can file electoral appeals

Within the region, citizens are entitled to file appeals against any determination aimed at including or excluding them from the voters’ register and the voters list. Such a right can also be brought against a decision refusing the issuing of electoral identification. Some countries entitle political parties, candidates, district attorneys and electoral prosecutors, to appeal any resolution issued with regard to the inclusion or the exclusion of any individual in or from the voters’ register (Argentina, Bolivia and Costa Rica). Mexico entitles political parties to file appeals against the report made by the electoral authority regarding the final observations made by such political parties on publication of the voters’ register. Usually, electoral authorities’ decisions on the approval or denial of registry to a new political can be appealed by other political parties or by citizens.

Appeals against the statuses of political parties can be filed either by their members or by other political parties (when the appeal is filed against a resolution taken by an electoral authority). In Colombia “every citizen will be entitled to file appeals at the National Electoral Council to appeal any statutory provision which is against the Constitution, the law or the National Electoral Council’s resolutions. Such a right will last for twenty days after a decision on the matter has been made.”

Many countries authorize political parties to appeal illegal resolutions issued by the electoral authorities related to them (political associations are also entitled to do so in both Argentina and Mexico). Such countries also authorize political parties to appeal electoral resolutions related to the preparation for election day, to electoral results and to inabilities of elected candidates to undertake their duties.

In Argentina, representatives and elected representatives can file appeals against a representative’s election at the political institution in charge of resolving them. Senators and elected senators have the same right to appeal senatorial elections. Moreover, the Senate can entitle any individual or any institution to file such appeals.

Some countries authorize their qualified institutions to carry out a review on the lawfulness of electoral results. Other countries authorize candidates to do so (Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, Honduras, Nicaragua, Panama, Peru and Venezuela are among them. In Uruguay candidates are authorized to challenge congressional elections while the appeals of presidential elections are reserved for political parties’ authorities that are registered before the Electoral Court). Some countries provide candidates with an accessory role (Mexico, where they can only file appeals related to candidate’s inabilities, and Paraguay), while others do not authorize candidates to file appeals in an explicit way (Argentina, El Salvador, Guatemala and Dominican Republic). In each case, the candidates’ right to file appeals depends on how developed political parties are. It is also related to the evolution and characteristics of the party system and to the possibility of having independent candidates.

Some countries allow collective lawsuits to be filed in order to appeal either electoral results or candidates’ inabilities to perform their duties (Colombia, Costa Rica, Chile, Honduras, Nicaragua, Peru and Venezuela. Uruguay allows the existence of such lawsuits to appeal congressional elections). Citizens are also authorized to file appeals against such issues. Such an authorization is fundamental to ensure adequate access to the electoral judicial system for all, even though such openness can result in the filing of too many appeals (even as a political strategy performed either by a small political party or by a political party that is loosing an election). Such openness can also affect not only the preparation stage but also the resolution of electoral appeals, which can then affect the reliability and legitimacy of elections.

Judicial review of electoral issues is free in the majority of Latin American countries. In Mexico, for instance, free access for all to the judicial system is a constitutional right, while Peru taxes the access to judicial review (in Peru it is compulsory to make a deposit to support the appeals filed against a political party’s registration, candidate’s abilities or electoral results. The reimbursement of such deposits will be only derived from successful appeals). Access to a judicial system is related to the common need of making the access to courts even wider as well as to the common need of preventing electoral litigation from becoming an abusive device aimed at affecting the elections’ trustfulness. In some countries, political parties that file completely unsound or malicious appeals have to pay a special tax (Paraguay), while in others, futile appeals produce judicial fines.

Finally, some countries open the appeal processes to others who can be interested in them, such as the electoral prosecutor or the Attorney General who represents public interests (Argentina, El Salvador, Panama and Paraguay).

Terms

Deadlines are not always set down in an explicit way. However, there is a general trend towards a reduction in the periods during which electoral appeals can be filed. Such a trend is derived from a couple of needs. On one hand, it is necessary to renew public offices without any delay whatsoever. On the other hand, it is necessary to spend less and less time campaigning.

Two different appeals that can be distinguished from each other produce different filing deadlines. Deadlines are very different for those appeals used to challenge voters’ registers. There are three-day deadlines (Costa Rica, Guatemala, and Panama), four-day deadlines (Mexico), five-day deadlines (Chile, Dominican Republic, and Uruguay), fifteen-day and twenty-day deadlines (Argentina) and even thirty-day deadlines (Colombia). With regard to the preparations for the election day, there are three-day deadlines (Brazil and Guatemala), four-day deadlines (Mexico) and five-day deadlines (Argentina and Uruguay). Some countries’ deadlines are further extended, such as appeals against the registration of political parties (ten days in Peru and thirty days in Paraguay).

A second group of deadlines relates to appeals against electoral results. Some can be filed within twenty four hours after the counting has been done at the voting sites (Bolivia and Colombia); there are also “claims” and “complaints” which can be filed before superior electoral authorities (before elections are validated) which have to be filed within two days at the most (Argentina, Ecuador, El Salvador and Dominican Republic); in some other cases electoral results must be appealed within three days (Brazil and Costa Rica), within four days (Mexico) and five days (Honduras, Nicaragua, Panama and Uruguay). In Chile, electoral deadlines are set at the fifteenth day, while in Venezuela they are set at the twentieth or even the thirtieth day (with respect to the presidential contest). Peru decided to leave a more open deadline. Appeals can be filed there until a candidate has been declared as the winner.

Concerning electoral results, it must be noted that some systems for electoral litigation authorize departments within their electoral authorities to resolve appeals within different deadlines. For example, three day appeal periods are established in both Brazil (when the Supreme Electoral Tribunal resolves the appeals filed against rulings issued by regional electoral tribunals) and Mexico (where the Superior Court of the Electoral Tribunal resolves appeals filed against the rulings issued by regional courts on the inconformity appeals derived from congressional elections); as well as in Bolivia, without a specific deadline (when the National Electoral Court resolves appeals filed against the department electoral courts); and another option is an appeal filed within the same superior electoral authority (Guatemala and Nicaragua). In addition, some systems include the possibility of appealing before a non electoral judicial authority for constitutional reasons (Bolivia; Brazil, three days; Guatemala, five days to fill a constitutional review in the Supreme Court and two more days for an appeal at the Constitutional Court, like in Honduras or Panama), legality reasons (Colombia, eight days), or even a revision before a political authority (Argentina, with no specific deadline).

Deadlines to resolve electoral appeals are not always regulated and those that indeed are, have great variations. Regarding appeals against the electoral register, the deadlines to resolve them fluctuate between six (Chile and Mexico), eight (Guatemala) and ten days (Uruguay). Appeals against the creation of new parties vary from three (Costa Rica), four (Peru), six (Mexico), ten (Argentina) and fifteen days (Chile). Also the appeals filed against acts to prepare the election must be resolved within three (Guatemala), five (Argentina) or six days (Mexico).

There are also some systems that do not specify a deadline, but establish a point of reference such as before the declaration of the election (Costa Rica), before the elected authority takes the office or before the installment of the state congress (Mexico for state elections), or finally a deadline marked by an specific date (Mexico, which means twenty days for regional electoral tribunals to resolve appeals filed against congressional elections and ten to fifteen days for the superior electoral authority in the Electoral Tribunal for reconsidering an appeal against a congressional election or sixty days for presidential election).

Deadlines granted to jurisdictional bodies to resolve appeals filed against autonomous electoral authorities in the matter of electoral results vary from three days (for the Supreme Court of Guatemala to resolve trials related to the violation of fundamental rights), five (for the Constitutional Court of Guatemala to resolve appeals), to fifty days (Colombia).

In Argentina, regarding the appeals against electoral results filed at political agencies, there are no deadlines. As a matter of fact, with regard to the congressional elections, appeals can be filed even after Congress is opened for business (which means that congressional members hold their seats in a provisional way. In other words, they can be removed and replaced by other candidates after an appeal has been resolved).

Evidence

Broadly speaking, evidence provisions are not very detailed by electoral laws. Many times, no clear rules can be found at all. In some cases, the rules contained in traditional procedural statutes (Civil Code, Administrative Code) are used in electoral litigation, especially to admit and evaluate evidence brought by contesting parties (Bolivia, Guatemala, and Paraguay). Those countries that allow filing electoral appeals at ordinary courts usually allow the use of traditional procedural statutes to manage evidentiary issues. Some conclusions may nevertheless be offered as follows:

In many countries, it is compulsory to include all documentary evidence within the appeal (Costa Rica, Chile – in those cases in which the voters’ register is challenged–, Ecuador, Mexico and Peru). While some countries authorize both the plaintiff and the defendant to offer evidence to prove their claims (Argentina, Bolivia, Chile, El Salvador, Honduras, and Panama), only a couple of countries establish limits such as considering just electoral documents as valid evidence. In Colombia any kind of evidence can be used to support any appeal filed at the Fifth Section of the Chamber for Administrative Litigation of the State Council. Mexico authorizes the use of public and private documents, technical evidence, judicial files, the so-called human and legal assumptions, confessions, testimonies and experts’ declarations to support electoral appeals.

Most of the cases allow electoral authorities to gather all evidence that can help them in reaching a more satisfying decision (Argentina, Colombia, Chile, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, and Uruguay in some cases).

Electoral appeals must be resolved within specific deadlines and the representative agencies of a nation must be renewed in time. Therefore, electoral authorities have established rules according to which they will only admit evidence which can be used to support the contenders’ claims and which has been attached to the appeals within the corresponding time limit. Evidence such as provided by witnesses can hardly provide courts with relevant evidence for resolving electoral issues. The reason is clear: contenders can offer as many witnesses as they can gather, whose testimonies then could result in many contradictions.

Bearing all this in mind, it is important to highlight that Latin American systems for the resolution of electoral disputes are similar among themselves. While those countries in which admissible evidence is restricted to few cases allow judges to expand the number of things that can be used as evidence (Colombia and Mexico), those other countries that have wider rules for the admission of evidence allow judges to restrain the number of things that can be used as evidence. From both points of view, evidence is a tool that must be used to reach a more satisfying decision before meeting the established deadline.

From a theoretical point of view, there is a very influential procedural trend according to which different systems to evaluate evidence can be listed as follows: i) System of legal evidence: legislative texts establish how effective evidence can be; ii) System of free evaluation: courts are free to evaluate all the evidence attached to the appeal, in order to reach a satisfactory resolution in a free way. In such a system, judges are free to evaluate evidence from their personal, rational, or moral beliefs. No constraints are imposed upon judges in charge of resolving appeals; iii) System of rational evaluation: In such a system courts are empowered to determine how effective a proof can be considered. To do so, judges have to use logic and base their decisions on their experience. The system of rational evaluation is somewhere in between the other two; and iv) Mixed System: Elements of the previous systems are combined.

Very few electoral laws define the way in which evidence has to be evaluated to resolve electoral disputes. Three countries establish a system of free evidence (Colombia, where the National Electoral Council and its delegates are free to evaluate factual evidence; Chile, where the Tribunal for the Validation of Elections will work as a jury to evaluate factual evidence; and Peru, where the National Jury for Elections is empowered to resolve appeals evaluating evidence on their own). Two countries demand rationality from their electoral authorities (Costa Rica and Panama), while a single country establishes the system of legal evidence (El Salvador sets down not only that no more than three witnesses can be called to testify, but also that testimonies will never be enough to nullify an electoral order). Mexico follows a mixed system because not only public documents are recognized there as the most valuable evidence. Electoral authorities are also compelled to be rational.

In conclusion, “Election disputes are inherent to elections. Challenging an election, its conduct or its results, should however not be perceived as a reflection of weakness in the system, but as proof of the strength, vitality, and openness of the political system.”[i]

Reforming Electoral Processes

What Is Electoral Reform?

Electoral reform is a broad term that covers, among other things, improving the responsiveness of electoral processes to public desires and expectations. However, not all electoral change can be considered electoral reform. Electoral change can only be referred to as reform if its primary goal is to improve electoral processes, for example, through fostering enhanced impartiality, inclusiveness, transparency, integrity or accuracy. However, this distinction is not always clear in practice: some changes (e.g. US proposals to require voters to produce identity documents at polling stations) may be characterized as desirable or even necessary ‘reforms’ by their proponents, but as improper ‘manipulation’ by their opponents. Random and/or frequent electoral change, while it may be reformist, can also be confusing to voters, and thus defeat its purpose. Frequent change may also negatively affect the sustainability of an EMB’s operations.

Purported electoral reforms have also often had unanticipated consequences, either in the short or long terms, which have wholly or partially negated their anticipated benefits. Such a situation may arise due to poor design or implementation, or because the reforms give rise to opportunities for parties or candidates to manipulate the system to their advantage.

Electoral reform often only catches the public eye when it involves changes to representational arrangements, such as electoral systems, but it is a much broader concept than this. There are three distinct areas of electoral reform; an EMB and its stakeholders may play different roles in each.

The most dramatic examples of reform involve a previously non-democratic country introducing democratic electoral processes (e.g. Indonesia’s transition to open, multiparty electoral democracy in 1998–99). In such situations, reform in all three areas (legal, administrative and political) tends to take place at the same time, often under tight time constraints, and with no single player driving, and taking a holistic view of, the overall reform process.

Since the mid-1980s, there have been substantial structural and procedural changes in the way elections are conducted around the world, such as the growing numbers of independent and permanent EMBs and the increasing use of new technologies to deliver electoral services. Electoral reform has often been part of a package of general democratization initiatives. However, many countries that previously enjoyed general satisfaction with their long-standing framework and style of electoral administration have also undertaken substantial reforms. Examples include the introduction of an independent EMB and signiﬁcantly wider access to voting in Australia in 1984; the introduction of a new independent body with electoral functions, and a radically different electoral system, in New Zealand in 1993 (followed by a further consolidation and enhancement of the EMB’s functions, completed in 2012); changes in Sweden in 2001 to create a more independent electoral administration; and the establishment of an independent electoral commission in Tonga in 2010.

The internationalization of electoral frameworks and administration continues to place countries under pressure to introduce electoral reform measures. The relatively recent development of generally acknowledged principles for free, fair and credible elections, and of global and regional obligations for electoral administration, have created yardsticks by which each country’s electoral processes and administration can be assessed.

More problematically, countries are sometimes encouraged or even pressured to introduce processes, such as a civil register, which are not rooted in basic principles of freedom and fairness, but rather in the preferences of external advisers or election observers.

Reforms to electoral processes may be triggered by a failure to deliver acceptable elections or by conﬂict resulting from disputed elections. Where countries are dependent on international donor contributions, funds may be linked to the implementation of electoral reforms, as in Liberia. Even where there is no such explicit linkage, the injection of donor funds may tend to make arguments for electoral reform more compelling. Financial constraints requiring electoral resources to be used more sustainably and effectively have had a signiﬁcant bearing on administrative electoral reforms.

The increasingly widespread and expert independent and political party observation of elections has produced many well-documented assessments of electoral performance and recommended reforms — for example, in connection with Nigeria’s post-2003 elections and with numerous elections observed by ANFREL. Civil society and the media have become more aware of electoral rights and related international obligations. International observation and technical assistance to elections in emerging democracies can also have an effect in the mature democracies.

While governments have initiated many electoral reforms, at times in response to societal or external pressures, EMBs themselves have often been powerful motivators of such changes. More widespread public accountability and transparency of EMBs — a signiﬁcant reform in itself — has had a multiplier effect on further electoral reform. Materials supporting electoral reforms have emerged from EMBs’ increasing use of election audits and the advocacy activities of CSOs and other stakeholders.

The EMB’s Role in Electoral Reforms

While the EMB has a key role to play in all electoral reform, it may not be in a position to implement reform without the support of its key stakeholders — particularly the government, legislature and political parties. This is a signiﬁcant reason for EMBs to maintain a strong relationship with their stakeholders (see Chapter 8).

An EMB can only implement legal reform within the established legal framework agreed by the government and legislature. However, an EMB may have a key research, review and advocacy role in promoting electoral legal reform, which can be guided by the criteria detailed in International IDEA’s publication International Obligations for Elections: Guidelines for Legal Frameworks. Electoral legal reform can be assisted by establishing an appropriate permanent body of the legislature to monitor electoral activities and recommend electoral reforms to the government. Effective legal electoral reform depends on a multiparty approach in the legislature that subordinates political advantage to ethical electoral principles and good practice.

An EMB has more control over the implementation of administrative reforms, and can implement them more effectively, if it formally adopts a continuous review and reform process within its management policies. However, legal and administrative reforms often need to be synchronized to optimize their effectiveness. In Australia, for example, while the EMB has modernized its election procedures extensively, reform of the election machinery has not kept pace.

Political and legal reform issues related to electoral processes are often strongly associated. As with legal reform, EMBs do not control political reform, although again they can play a research and advocacy role, and cultivate support among key stakeholders.

Key steps for an EMB to consider in proposing and implementing electoral reforms include:

One challenge for EMBs is building up the skill base needed to drive electoral reforms. Well-established bodies typically have staff with a strong understanding of their existing processes. While they may be equipped to propose useful incremental improvements, unless they also have a sound knowledge of electoral fundamentals, they may be less well placed to imagine and elaborate the more radical reforms that are sometimes needed.

The Scope of Electoral Reform

A signiﬁcant area of electoral reform is the nature and structure of the institutions engaged in electoral management or delivering electoral services. Reforms in this area may enhance the independence of the EMB — for example, by adopting Independent Model electoral management in countries such as Bhutan and Tonga, or a Mixed Model as in Timor-Leste. Electoral responsibilities may be reassigned among existing and/or new bodies to promote better service delivery — as in New Zealand, Sweden and the UK. In Sweden, the EMB itself initiated the reform of electoral management. In Indonesia in 1998–99 and in the UK, the government initiated the reforms. Pressure from local civil society or international groups may also instigate the reform of electoral management arrangements, as in Georgia and Liberia.

Reforms of electoral processes, such as the introduction of a new electoral system, may have a broad effect on an EMB’s strategies, policies and procedures. They may target key electoral issues such as electoral participation and representation, the delimitation of electoral districts, voter registration, the registration and oversight of political parties, and improving electoral integrity. They may also target speciﬁc technical or technological aspects of the electoral process, such as introducing new procurement or employment processes, voter registration systems, or voting and vote-counting methods or systems. They may involve social policies, such as reducing a gender imbalance in representation, improving access to electoral processes for marginalized sectors of society or improving the representativeness of the EMB’s staff.

Electoral system reform, as in Indonesia, Papua New Guinea and New Zealand, is one of the most far-reaching reforms in election administration. It is often the result of a functional need, for example, of perceptions of ‘unfairness’ in representation or of government ineffectiveness or lack of responsiveness. In 2003 Indonesia changed its electoral system from closed-list proportional representation (PR) in very large electoral districts to open-list PR in small electoral districts in order to address perceived deﬁciencies in the links between voters and representatives, while maintaining the consensus nature of Indonesian governance. Electoral system reform places a substantial information responsibility on the EMB, and may require it to implement new methods of electoral district boundary delimitation, voting and vote counting.

EMBs can play a signiﬁcant role in reform of electoral district boundary delimitation, for example as advocates of more transparent and equitable boundary delimitation processes; by providing expert opinions on boundary delimitation issues; and by ensuring that they exercise any responsibilities for boundary delimitation impartially, equitably and with integrity. Some electoral reforms have introduced multi-member districts, as this type of system, usually based on PR, can decrease the influence of electoral boundaries on election results. Other reforms have required boundary delimitations based on ‘one person, one vote, one value’. Some reforms have attempted to make boundary delimitation processes more transparent and objective, for example by excluding the legislature from the delimitation process, placing an independent body in charge of delimitation, and requiring open hearings and independent review of proposed boundaries.

The process of registering electors has attracted many efforts at modernization in both emerging and established democracies. Voter registration determines the ability of eligible voters to participate in an election, and thus is a key element of the fairness of an election. As it generally occurs well before election day, and often outside the direct scrutiny of observers (especially where electoral registers are derived from civil or population registers), the internal integrity of voter registration systems needs to be very high. Reforms have increasingly targeted the efﬁciency, as well as the integrity, of voter registration processes. They have often included the introduction of biometric data capture and processing, with the stated aim of decreasing the scope for multiple registrations, voter impersonation and/or multiple voting.

Many EMBs have implemented systems to improve the inclusiveness, fairness, accuracy and transparency of voter registration, for example, by providing for continuously updated voter registration, special registration provisions for transient voters, and safeguards against the wrongful rejection of a registration or removal from the electoral register. EMBs and other agencies responsible for maintaining data from which electoral registers are derived are improving the integrity of electoral registers by using better methods to check the identity of qualiﬁed persons and reducing data processing times, often using modern technological solutions. EMBs need to ensure that technological solutions for voter registration enjoy citizens’ trust and are sustainable, especially in emerging democracies where EMBs may have uncertain levels of future ﬁnancial support.

There have been signiﬁcant reforms in the role played by EMBs in monitoring and regulating the activities of political parties. Some are the consequences of legal reforms targeted at levelling the playing ﬁeld for political competition — for example, reforms in the administration of state funding of political parties and candidates’ election campaigns, and the qualiﬁcations for registering parties and candidates to contest elections. Others have been targeted at improving oversight of campaign contributions and expenditures, and the internal democracy of political parties — such as oversight of candidate selection processes. Reforms to promote a level playing ﬁeld for elections have also given some EMBs the responsibility of administering or monitoring arrangements that require the media to allocate campaign advertising opportunities equitably.
A growing number of EMBs are introducing new voting methods. Brazil, India, Bhutan and Venezuela have replaced manual voting with EVMs, while Estonia has introduced Internet voting. Many of the issues that need to be considered in reforming electoral processes by introducing electronic voting are discussed in Chapter 9.

There have been signiﬁcant efforts to make electoral participation more accessible. Access to voter registration has sometimes been opened to those who are out of the country, of no ﬁxed abode or in prison. Access to polling has been widened for many people through the introduction of in-person absentee, postal or pre-poll (early) voting, including for voters who are out of the country, and by providing special voting and voter information facilities for refugees, internally displaced persons, the disabled, the aged and those in remote areas, in prison or in hospital. EMBs have had to respond to all these reforms by introducing procedures and systems that enable the additional access while maintaining high integrity in the voter registration, voting and counting processes. Internet voting is the subject of much current research, and poses a challenge to EMBs that might be contemplating its adoption, since the skill sets required to manage such a process are radically different from those typically found in EMBs that manage traditional voting methods.

It should be noted that reforms that give rise to a proliferation of different voting methods, or more generally to a range of different modalities for performing a particular function, tend to be more challenging for an EMB than ones that simply update a single mechanism to a different single mechanism.

Reform of electoral access has attempted in some countries to provide equal access for speciﬁc societal groups and for women. Such reforms may well have to be pursued in a complementary way in the legal, administrative and political areas. EMBs can promote equitable access by insisting on it in their own stafﬁng, for example by requiring gender balance in temporary stafﬁng for polling stations, and using internal professional development programmes to ensure that women advance into EMB management positions.

Managing Electoral Change

Electoral change management requirements will depend on the extent of the reform and the speciﬁc electoral processes involved. Changes to the model of the EMB — for example, from a Governmental to an Independent Model — require particularly careful planning to ensure a smooth transition and the retention of skills and institutional memory. It is crucial that changes to electoral structures and frameworks are agreed long enough before electoral events to allow for the preparation of new materials and the effective implementation of training.

Especially where the process of change applies to the nature or structure and staff of an EMB, it is essential to appoint a skilled manager and communicator to oversee and implement the changes. Changing organizational structures and individual roles within structures will inevitably create tension. Transparency, honesty, serious consultation, communication and adequate forewarning are essential elements of managing personnel through electoral change. Timing is also critical. EMB staff have skills and knowledge that may be difﬁcult to replace, especially close to an election date. Involving EMB members in change management demonstrates the EMB’s commitment to reforms.

Reforming electoral technical processes may require the help of experts who specialize in particular technical areas. In implementing technical reforms, an EMB needs to ensure that the right procedural and system speciﬁcations have been chosen and correctly implemented. Thorough development review processes and pre-implementation testing are essential. The change management process also needs to include measurable indicators to evaluate the implementation of the electoral reforms, and clear responsibilities for reporting on indicators and improving performance if any indicator is not achieved.

Risks Associated with Electoral Reform

Where a country’s electoral processes are proceeding reasonably well, risk generally tends to be minimized by the incremental pursuit of electoral reform, making small changes over a period of several elections. The simultaneous implementation of major reforms in a range of different areas can place a great burden on an EMB, and will increase the risk of suboptimal implementation, especially when deadlines are tight. While sound implementation has the potential to meet intended targets, and hopefully to build confidence and trust in the effectiveness of elections and the EMB, failed implementation can have the opposite effect. This will be especially problematic if reforms are pursued without strong political support across the board; opponents of a particular initiative are likely be looking for opportunities to characterize it as a failure, and to push for its abandonment.

There are three main risks inherent in reform processes. The first is that of trying to solve the wrong problem. For example, there will be little benefit for a country to invest heavily in a technologically sophisticated voter registration system if the real problem is that the polling officials are intimidated, suborned, or corrupted by parties or candidates, making the quality of the register itself largely irrelevant. Where a country’s electoral culture is truly dire, there may be little to gain from massive investment in technology, since even if it works it may simply displace fraud from one area of the system to another. Major reforms, especially those involving technological innovation, can be very expensive, particularly when factors such as long-term maintenance costs and depreciation are taken into account. The task of setting up such systems can easily overwhelm even a well-established and resourced organization, placing massive demands on the time of senior management and potentially drawing attention away from other problem areas that, judged objectively, may be more deserving of priority attention

A second risk is that of making unrealistic assumptions about non-technical matters on which the success of a system depends. For example, a database intended to be used to maintain a continuously updated register of voters may fail to live up to expectations if there is no way of ensuring the constant flow of data required to keep the database up to date.

A third risk is a loss of agility. A decision to adopt a specific technological approach may well lock a country or organization into maintaining a way of dealing with a problem that will be difficult, or increasingly expensive, to sustain in the long run. For example, organizations that invested heavily in Internet- based processes, not just in the electoral field, are now finding that they are having to retool their PC-based systems to make them readily accessible from smartphones and tablets, as consumers’ preferred ways of accessing the Internet change.

Chapter Summary

Bibliography

Contributors

The the original Legal Framework topic area was written by Dr. Pablo Santolaya, Doctor at Law and a Full Professor in Constitutional Law at the University of Madrid, specialising in the legal and procedural aspects of Electoral Law and Director-General of Electoral Processes in Spain, a post he held until May 1996. Dr. Pablo Santolaya was assisted by Diego Iñiguez, an official in the service of the Superior Body of Civil State Administrators in Spain.

Significant updates in 2012 were undertaken by Richard D. Balasko who served for 20 years as the independent and non-partisan Chief Electoral Officer in Manitoba, Canada. Mr. Balasko has over 30 years experience in electoral management at the provincial and federal levels in Canada. Mr. Balasko has also contributed to international democratic development as a mission leader, member or trainer in nearly a dozen international assistance and observation missions.

Canada: Considering the Right to have a Vote Counted and Procedural Non-compliance at Voting Stations.

This case study considers the intersection of enfranchisement including the right to have that vote counted, safeguards to the integrity of the electoral process, judicial interpretation of the legal framework for elections and election administration, all in the context of a consolidated democracy.

The 41^st Canadian General Election took place on May 2, 2011. In that election, the successful candidate in the electoral district of Etobicoke Centre won by a plurality of 26 votes in the “first past the post” election. The second place candidate applied for an annulment of the election as permitted by s.524(1)(b) of the Canada Elections Act (CEA) citing “irregularities” that “affected the result” of the election. The matter was heard before the Ontario Superior Court of Justice which granted the application, setting aside 79 votes which was greater than the plurality. Several actions where then brought before the Supreme Court of Canada (SCC) in Opitz v. Wrzesnewskyj, including an appeal of the Ontario court decision by the initial first place candidate, a cross appeal by the candidate initially in second place, and a motion by the federal Chief Electoral Officer to introduce new evidence. Ultimately, both the cross appeal and motion to introduce fresh evidence were dismissed. The appeal of the Ontario Court decision is examined further in this case study. The SCC delivered its decision on October 25, 2012. To the following: An application was then made to the Supreme Court of Canada (SCC) in Opitz v. Wrzesnewskyj appealing the Ontario court decision by the initial first place candidate. A cross appeal was also brought by the candidate initially in second place. Ultimately, the cross appeal was dismissed. The appeal of the Ontario Court decision is examined further in this case study. The SCC delivered its decision on October 25, 2012. The reason for the changes are: (i) the motion to adduce fresh evidence was not an "application" on the same scale as the appeal and cross-appeal, and in fact, the majority of the court chose not to rule on it (as opposed to dismissing it).

In determining whether to annul an election, the SCC accepted the “magic number test” which provides that an election should be annulled if the number of invalid votes is equal to or greater than the successful candidate’s plurality; although the court acknowledged that another more realistic method might arise in the future.[i] At the core of the appeal was an interpretation of what constitutes “irregularities…that affected the result of the election.” Unfortunately the CEA does not define the term “irregularities” in this context. Nevertheless, the SCC in a 4-3 ruling allowed the appeal and as a result the candidate who initially had the plurality of votes following the election, retained the victory. What makes this decision so instructive and fascinating is the discussion in the judgement of both the majority and dissenting opinions as they establish very different perspectives on what constitutes an “irregularity…that affects the result” of an election. This discussion goes to the very heart of democratic practices.

Essentially, the appeal was grounded in a number of procedural errors by poll officials at the voting place. No allegations of fraud or such wrongdoing were made in the case. Should votes cast be set aside because the process was not followed properly by officials and what is the test? Referring to earlier decisions of lower courts, in effect the majority decision differentiated that:

Under the strict procedural approach, a vote is invalid if an election official fails to follow any one of the procedures aimed at establishing entitlement. Under the substantive approach, an election official’s failure to follow a procedural safeguard is not determinative. Only votes cast by persons not entitled to vote are invalid. The substantive approach should be adopted, as it effectuates the underlying Charter right to vote, not merely the procedures used to facilitate that right.[ii]

As might be expected in the case of a SCC decision, both the majority and dissenting arguments are precise and have merit. It seems that each view, in its own way, seeks to balance enfranchisement with the need to safeguard the process.

In the majority, the SCC established a two part test requiring an applicant to demonstrate that a breach of a statutory provision intended to establish the voter’s entitlement to vote had taken place and that a person who voted was in fact not entitled to vote[iii] (i.e. at least 18 years of age, a Canadian citizen and resident in the electoral district). Together, these two aspects if satisfied would establish an “irregularity” that “affected the result” of the election. This reflects the “substantive” approach favoured by the majority.

In dissent, as presented by the Chief Justice, the argument was advanced that the “entitlement” to vote was much broader than suggested by the majority and in fact was comprised of three prerequisites: qualification (Canadian citizen and 18 years of age or older), registration (generally either by being on the list of electors or filing a registration certificate) and identification (properly identified at the polling station whether by providing appropriate pieces of identification or by taking an oath and being vouched for by another elector).[iv] The registration and identification requirements were seen as fundamental safeguards for the integrity of the electoral system.[v]

The majority view begins from the perspective that an election should not be set aside lightly; a view that is echoed in international election standards. The majority also began their analysis with Section 3 of the Canadian Charter of Rights and Freedoms which states, “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”[vi] A fundamental purpose of the CEA therefore is to give effect to universal suffrage. However, “While enfranchisement is one of the cornerstones of the Act, it is not free-standing. Protecting the integrity of the democratic process is also a central purpose of the Act.”[vii]

Nevertheless, administrative error should not be easily allowed to dismiss or undermine the fundamental right to vote; “If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded.”[viii] And errors there will be. The majority recognized that by definition, the workforce at an election is broad and of limited experience simply because of the nature of the event and so mistakes will happen. This is not to say that procedures should not be followed as they do serve an important purpose safeguarding the integrity of the process and electoral authorities should do all that is possible to see this happens. While, “The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves.”[ix] The bottom line seems to be that the right to vote established in the Charter of Rights and Freedoms is paramount. The majority could not countenance the disfranchisement of every voter who voted as a consequence of setting aside a small number of votes where procedural errors took place. In addition, if procedural errors can be the basis of the annulment of an election, then the majority anticipated with concern that lightly overturned elections could increase the “margin of litigation” meaning election outcomes close enough to result in post-election legal action[x] even as losing candidates use the process to find technical administrative error seeking to get a second chance.[xi] Unless an applicant can establish that a procedural breach occurred and establish a vote was cast by someone not entitled to vote then the vote will be counted.

The dissenting opinion identified other core objectives of the CEA and disagreed that voter “entitlement” was so narrowly defined. In the dissenting view, “The overarching purpose of the Act is to ensure the democratic legitimacy of federal elections in Canada… A second and complementary objective is to ensure that people who are not qualified to vote do not do so… A third objective is to promote efficiency and certainty in the electoral process.”[xii] As a requisite for the “entitlement” to vote, the CEA provides that registration and identification must also be established for a good reason, namely, “They are fundamental safeguards for the integrity of the electoral system.”[xiii] In dissent it was argued that without such safeguards, public confidence in the electoral system would suffer. Taken together it was the conclusion of the dissenting view, “that “irregularities” under s. 524(1) (b) should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial.”[xiv] Not all procedural errors would result in votes being set aside; non-compliance of a “technical or trivial” nature would not be set aside as “irregularities”. The onus, the minority agreed, rests with the applicant to establish “irregularities” and that the “irregularities” affected the result of the election sufficient to annul the election.

So depending on your point of view, this SCC decision either reaffirms the primacy of the fundamental right to universal suffrage or the decision sets the system on a “slippery slope” where system integrity may be eroded. In the days after the decision, the press reflected both points of view. Either way, however, there are a number of instructive aspects to this decision in terms of the legal framework for elections.

First off, it should be noted that the system allowed for an expedited consideration of the application for annulment of the election right up to the highest court in the land. Secondly, although there are differing opinions about the substance of the decision, there is broad acceptance of the independence of the SCC dealing with such an essentially partisan matter as the election of a Member to the House of Commons. The well-reasoned, albeit widely diverging, views of the court also may prompt a meaningful discussion about what the law should require and possibly result in legislative amendments. In late September 2012, Chief Electoral Officer Marc Mayrand is reported to have said, “While we can make administrative changes to enhance our processes, these likely won’t be enough. Legislative changes may also be necessary to respond to Canadians’ concerns regarding the electoral process and make the system less prone to errors.”[xv]

Particularly in matters as ultimate as the potential annulment of elections, the legal framework should strive to be as clear as possible when defining the grounds. If that is not the case then as this appeal demonstrates, even judges of the highest court may arrive at fundamentally different interpretations.

There are also lessons to be learned regarding the recruitment, training, supervision and audit of election day workers; matters which Elections Canada already appears to have well underway. It was reported that in May 2012, Chief Electoral Officer, Marc Mayrand, “told the House of Commons Procedure and House Affairs Committee that Elections Canada will have to revisit its processes for recruiting and training workers, and their compliance with procedures at polling stations.”[xvi]

Political party and candidate representatives at the voting place will also continue to play an important role. At the end of the day, however, any electoral process will include some mistakes by officials and the key is to ensure that the legal framework is as precise as possible and provides an efficient, and clear means for resolving disputed elections in a way that will maintain public confidence in the legitimacy of the election.

Egypt: Parliamentary Elections and the Judiciary

Parliamentary elections in Egypt held between November 2011 and February 2012 demonstrate the critical importance of the legal framework in the conduct of genuine elections and the transition to democracy. Elections to the lower house, the People’s Assembly (PA), also resulted in judicial review of the electoral laws and ultimately a decision setting aside the election.

Following a period of popular demonstrations, and on February 11^th, 2011, the resignation of President Hosni Mubarak, Egypt’s military Supreme Council of the Armed Forces (SCAF) established itself as the transitional authority and suspended the constitution. Parliament was dissolved and elections would take place for the PA as well as the upper house, the Shura Council (SC). Presidential elections would follow. In addition, a Constituent Assembly (CA) would be formed and tasked with drafting a new Constitution.

The electoral system established by the Law on the People’s Assembly (LOPA) in October 2011, provides for the PA to be elected in a mixed system where 2/3 of the 498 seats would be elected based on a closed “party list” proportional representation (PR) system and the remaining third of seats elected in a majoritarian system of two members per constituency (Individual Candidate seats or IC). However, under the system party candidates were allowed to run in individual candidacy races and in effect, this resulted in political party candidates being able to challenge all elected seats in parliament, while individual candidates could only challenge one-third of the seats.[i] It would be this provision which would ultimately result in the PA election being set aside.

Observing the PA election, the Carter Center noted that while there were shortcomings in the legal framework, election violations and weaknesses in administration, “the results appear to be a broadly accurate expression of the will of the voters.”[ii] However at the same time, the legal restrictions on individual versus party-backed candidates had the effect that only 15 percent of individual candidate seats were won by candidates not affiliated with any party. [iii]

The PA election was challenged in court on the basis that it was unconstitutional that party candidates could challenge individual candidate seats but individual candidates could not challenge party-backed PR seats. On June 14^th, 2012 the Supreme Constitutional Court (SCC) ruled the PA election to be invalid citing three unconstitutional articles of the LOPA and one of Decree 123/2011. The essential fact found unconstitutional by the SCC was that the LOPA was discriminatory by allowing party-backed candidates to challenge for individual seats but not allowing associations of independent candidates to challenge for the PR seats.[iv]

While the second round of the Presidential vote was only days away, the SCAF issued a decree dissolving the PA. Once elected in June 2012, President Mohamed Morsi, attempted without success on July 8^th to reinstate the PA on an interim basis by annulling the initial decree of the SCAF. As a result, new elections for the PA are required.

Subsequently, in September 2012, the Supreme Administrative Court (SAC) ruled to uphold the decision of the SCC to dissolve the PA but the political debate continues. A legal adviser to the Freedom and Justice Party, which held a plurality in the dissolved People’s Assembly, describes the ruling as a ‘catastrophe in the history of the Egyptian judiciary’ while others, including former presidential candidate Amr Moussa called for respect for judicial rulings. [v]

Significantly, setting aside of the PA election, a resulting dispute with the President and political controversy have been able to be accommodated even though in a transitional environment. In no small part this appears to be due to the role of judges, “and because of the existence of Egypt’s well-established and well respected courts.”[vi] The courts also seem determined to face critics as did the SCC responding by denouncing, “’unacceptable interference’ in the court's work, insisting that all the court's verdicts were based on constitutional legitimacy, refuting claims they were politically biased.”[vii]

It is noteworthy that the elections to the SC are also being challenged before the courts on basically the same provisions as were found unconstitutional in the case of the PA elections. This leads to speculation, “it can be expected that a similar decision will be reached in that case, as was reached in the case concerning PA elections.”[viii] If the challenges are similarly upheld then new elections would also be required for the SC.

The CA itself is also the subject to numerous court challenges to its validity. Initially, per the Constitutional Declaration, the CA must finalize its constitutional proposal before December 11, 2012 following which a referendum would be held within 15 days. In October 2012, the legal challenges were referred for decision to the SCC and so the timetable for constitutional reform may be impacted as well as the timing of the parliamentary elections.

Taken together the impact of legal challenges on the legal framework is very significant:

These factors mean that it remains difficult to predict with confidence how the next phases of Egypt’s transition will unfold. Nevertheless, whatever the future holds for the constitutional drafting process, at some point in the not too distant future, it will be necessary to revise the Law on the People’s Assembly (LOPA). Potentially this will re-open the thorny question of the electoral system.[ix]

The role of the judiciary in interpreting the legal framework remains critical and in the case of Egypt in particular, “With the nation increasingly polarised, and mistrust between Islamists and other groups growing, Egypt's judiciary has emerged as a final arbiter for settling most disputes.”[x]

This case study also reinforces the notion that the legal framework does not exist in a vacuum, as electoral system revisions, “were not made in a static environment, but rather one in which the roles and powers of various political, government and civil actors were constantly being challenged and redefined.”[xi]

Jordan: A Changing Electoral Framework

The legal framework for elections may surely be measured against international standards but must always also be referenced by the national context. On the road to democratization, whether reform is substantial or rapid enough will often be assessed differently as influenced by the vantage point of the observer. Reform is often achieved through the interaction of the main stakeholders, each striving for its interests. Electoral reform in Jordan is an interesting case study in this regard.

Jordan is a constitutional monarchy, with the government consisting of Chief of State (the King), the executive comprised of the Prime Minister and Council of Ministers, and the legislative National Assembly with two chambers: the House of Deputies and the Senate.[i]

The nature of the electoral law in Jordan has been a major point of contention among political factions and this has only increased and become more public in the time since the emergence of the Arab Spring. Of course, the electoral system is only one of several challenges facing Jordan but it remains a very visible and focused issue. The political upheaval of the past several years may be seen in the fact that the King has appointed five different prime ministers since the beginning of the Arab Spring.

Ultimately, King Abdullah determined to dissolve the House of Deputies elected in 2010 roughly half way through its mandate and announced that early elections would be held in late 2012 or early 2013. As a sign of reform, new election laws were to be put in place to elect the next parliament. Subsequently, Jordan’s new Independent Election Commission (IEC 2012) announced that on January 23, 2013 early elections will be held to elect members of the House of Deputies which is the only body directly elected by Jordanian citizens.

Since 1993, Jordan’s electoral system to the House of Deputies has been based upon the “single non-transferable vote system” (SNTV). Unlike most electoral systems, SNTV, “combines multimember districts with the rule that a single vote is cast for a particular candidate, which often results in candidates winning seats with the support of only a small minority of the voting population.”[ii] Since its introduction, SNTV has been controversial with those in opposition arguing that the law discourages the development of political parties in favour of votes being cast for individual candidates most often representing tribal groups versus a political party platform.[iii] Another criticism put forward is that SNTV is easily “gerrymandered” with districts varying in voters per Member of Parliament (MP) between 8,000 and 46,000.[iv]

On June 19, 2012, parliament followed through on King Abdullah’s call for reform and adopted a new electoral law. The June election law resulted in a mixed system under which voters have two ballots, one under SNTV for a candidate at the district level and one for candidates competing at the national level under proportional representation.[v] The size of the House of Deputies was also increased from 120 to 140 seats of which 17 were to be elected from the national level lists (which include but are not limited to political parties) based on proportional representation. The number of seats reserved to guarantee women’s representation was increased from 12 to 15.[vi]

Characteristic of the strong views held regarding electoral reform in Jordan, “20 MPs threatened to resign—two even came to blows—over the proposed law. Hours after it was approved, leader of the Islamic Action Front (IAF) Hamza Mansour dismissed it as ‘just a cosmetic change meant to buy time and insufficient for real reforms.’” [vii] There was immediate talk of an election boycott.

On June 29^th, responding to the threat of a boycott, King Abdullah asked the parliament to convene an extraordinary session and on July 4, 2012 the government proposed increasing the number of national proportional representation seats to 27.[viii] The size of the House of Deputies was also increased to 150.

However, the amended version of the new electoral law similarly, “triggered instant uproar across the kingdom among opposition and pro-reform activists.”[ix] The Muslim Brotherhood stated that its political wing, the IAF will boycott the January 2013 elections. Other opposition elements have similarly announced an election boycott.[x]

On the one hand, King Abdullah and his supporters express that the changes to the electoral laws are meaningful. As the Jordanian Ambassador in London wrote at the end of October 2012, “This is the first time in Jordan's history that a national list is introduced to complement the voting system. This is meant to encourage participation and representation of political parties.”[xi] Beyond the legislative electoral reforms, it has been reported that; “According to the king's roadmap, elections will be held Jan. 23 for a parliament that will then choose the prime minister. Previously, it was the king's prerogative to appoint a premier.”[xii] and “The king also suggested that the next government might come from parliament itself, from whatever key parties and blocs of MPs coalesce after the election.”[xiii]

On the other hand, the opposition movement has stated a number of demands including, denying the ability of the King to dissolve parliament, parliamentary control over the formation of the government, direct election of the upper house and a mixed electoral law that allocates 50% of seats for the national list by proportional representation and for the remaining 50% of electoral districts allowing voters in each district to vote for all of the candidates in the district.[xiv]

So it can be seen that there are two dramatically different perceptions of what is substantial reform of the legal framework for elections and whether the pace is acceptable. According to one observer of Jordanian politics, “the polarization has, in fact, reached potentially dangerous levels.”[xv] Another comments, “If various opposition forces do not see the elections as credible, you will see real signs of instability."[xvi]

However, there remains the potential for further progress in electoral reform. The King is reported in October 2012 as acknowledging that, “This elections law is not perfect. We all understand that. But there is no better consensus on an alternative. What is critical is that we keep going forward.”[xvii] Despite boycotting the upcoming elections, Jordan’s Muslim Brotherhood deputy leader is reported in November 2012 to have, “expressed his belief that there is still plenty of time to reconsider the political Jordanian path. He called for a national dialogue table that will be based on postponing the elections and reconsidering the roadmap for political reform.”[xviii]

The process of electoral reform may be extremely complicated and various stakeholders need to be heard and accounted for. For this to occur in any situation, dialogue remains a crucial component.