Election legislation may exist as a set of separate laws or as a single electoral code. Legislation in this area is likely to address the electoral system, voting rights, the establishment and functioning of the election management authority, voter registration, election preparations, and campaign financing. While voter educators may not participate in the drafting of this legislation, it will have a significant impact on the voter education undertaking.
Electoral Systems
Different electoral systems place different demands on voters and election authorities. The choice of a system normally reflects the social circumstances within which voters find themselves. If legislation cannot be easily amended, there may be times when social change precedes changes to election law. This can result in a misalignment between voters and the system. Recently a number of countries have been engaged in discussions about potential reforms of their electoral systems. The nature and timing of changes to the electoral system will have a major impact on voter education. Where a system has been in place for some time, there may be some assumption that this is the only, and most appropriate system, and therefore there will be some resistance to change.
Generally, however, voter educators will want to lobby for systems that limit complexity both at the voting level and in determining results.
Election Legislation and Voter Education
A legislative mandate for voter education is often a prerequisite to mobilize the necessary budget and staff to support the programme. Depending upon the degree of decentralisation of election administration, a legislative mandate may stem from either national or state laws. There may be countries where legislation excludes broadly defined voter education initiatives on the part of the election authorities: Spain is one example. In such cases, election management authorities have to provide voter information within very restricted guidelines.
On the other hand, increased understanding of the value of education has resulted in more detailed voter education clauses in electoral legislation. In a number of cases, these have been linked to public information and campaign legislation. Legislation often needs to be interpreted carefully, however, and the independence of the electoral management authorities, their security of tenure, and control of their budgets all have an impact on their ability to establish innovative programmes of public information and voter education.
Legislative clauses may range from the simple to the more complex. In some cases, the functions delegated to the electoral management authority may not be clear in mandating voter education. The apparent coincidence of elections with democracy, for instance, may result in the electoral management authorities either receiving a clear mandate to conduct voter education or interpreting it simply from their roles and functions.
In Ethiopia, the election of a constituent assembly requires the establishment of an electoral board. In addition to its other "powers and duties", it was required "to widely provide to the public civic education relating to elections." [1]
A similar brief provision exists in the Australian Commonwealth Electoral Act of 1918. The functions of the Electoral Commission are "to promote public awareness of electoral and Parliamentary matters by means of the conduct of education and information programs and by other means." [2] Brevity, however, has not limited creativity. In Australia, the compulsory nature of voting has led voter educators to a broad interpretation of their mandate. In fulfilling its responsibility to ensure that all voters are able to cast their ballot and understand its importance, the state places the initiative to vote with the voter. The result has been an extensive voter education programme.
In Canada, the educational mandate has been extended in an interesting way to ensure that education is provided on an inclusive basis. "The Chief Electoral Officer may implement public education and information programs to make the electoral process better known to the public, particularly those persons and groups most likely to experience difficulties in exercising their democratic rights." [3] This is a good example of how changes in the social context have been followed by legislative directives.
Unfortunately, this is not always the case. In two transitional situations, provisional authorities have been given equally brief directives. In the referendum over the creation of Eritrea, the proclamation reads that the election authority has as one of its duties "publicizing the referendum and informing the voters." [4] And in Bosnia and Herzegovina, the provision reads in part, "In order to inform the citizens of Bosnia and Herzegovina about the electoral process and citizen's rights as voters, the Provisional Election Commission has decided that all radio and television stations throughout Bosnia and Herzegovina and in both Entities shall broadcast informational voter education material produced by the Provisional Election Commission." [5]
This provides an illustration of the close relationship between voter education and the general role of the media in elections. And juxtaposed as it is with articles relating to party use of the media, it also underscores the close relationship between voter education and political propaganda.
The Mozambican Electoral Law includes a chapter entitled "Election Propaganda and Civic Education". Within that chapter of eleven articles, only one, Article 102 (Civic Education), relates to actual concerns for voter education. But by linking these sections, it appears that voters are going to become not only better informed but more committed to electoral participation if they are exposed both to a well-publicized campaign and to the necessary voter information.
The Mozambican law provides some additional insight into voter information and education messages and methods:
- Through the media, the National Electoral Commission shall promote the education of citizens on the objectives of the elections, the electoral process, and the manner in which each voter casts his/her vote.
- The communiques, semiofficial statements, and other acts of the National Electoral Commission shall be published by the public sector media free of charge and as a matter of priority.[6]
Beyond standard legislation on elections, stand-alone legislation on voting rights, such as exists in the United States and Russia, may require that election management authorities at all levels provide information and education to the electorate at large or to certain target groups and make the voting process more accessible, for example to voters with disabilities or to first time voters.
In some cases, often in transitional environment, election legislation is silent on the issue of informing voters. In these instances, election management authorities need to decide whether or not they have the authority to conduct voter education as a part of their broader election preparations. This decision can be affected by the socio-political context in which elections are being held, legal traditions (for example how narrowly legal provisions are interpreted), and sensitivities about mandate. Does the public expect the electoral management authority to provide fundamental information on the elections? Is there money to do so? Would political participants consider this to be beyond the mandate of the election authority and would this perception adversely affect the legitimacy of the institution or the elections? Such concerns, in the absence of a legal mandate, have led the Republic Election Commission of Montenegro, for example, not to engage in voter education activities.
Also in countries undergoing a transition, it is not uncommon to find situations in which an election management authority has a legal mandate to inform, educate or to change attitudes of voters, but has not been provided with the necessary budgetary allocation to fulfill such obligations. This is known as an unfunded mandate. In resource scarce environments, simply pulling off an election on time will consume all available funds. Very often, voter education becomes a relatively low priority or is considered a luxury. Georgia provides one example in which election budgets have been routinely underfunded, with transfers of government funds taking place relatively late in the election process. Under such circumstances, the international community often becomes involved, assuming the costs of voter education efforts.
Election Legislation and the Promotion of Democracy
Because of the importance of elections in maintaining democracy and its institutions, many electoral management authorities have used the powers given to them for informing the public and educating voters to expand their work into schools and other educational institutions. In some cases this type of work may be construed less as civic education in its totality but more as education for or about elections. Russia and Ukraine provide two examples in which the election management authority and educators have joined forces to introduce classroom-based courses on elections.
There are times, however, when the electoral code seems to go beyond this type of electoral education and compels electoral management authorities to intervene at a deeper level. In Mexico, the code requires the Federal Electoral Institute to "assist in the promotion and diffusion of the political culture" and to "contribute to the development of the democratic life." [7] This has resulted in a very extensive educational programme that is not only on-going but extends beyond the scope of a particular election.
In South Africa, the act of establishing the electoral commission lists a range of functions to "promote conditions conducive to free and fair elections" and to promote "knowledge of sound and democratic electoral processes". [8] The objectives of the commission are "to strengthen constitutional democracy".[9] This may have educational implications as yet unforeseen by the commission.
The leeway allowed by such provisions, however, places significant responsibility on electoral authorities. On the other hand, this may not be the case in societies where there are a many competing institutions, both private and public, or where the authority has an onerous administrative mission. It will also not be feasible in societies where there exists no permanent election management authority. Also the size of an election or constraints caused by the cost of elections may make it difficult for the authorities to engage in anything more than simple voter information. Indeed, operating a general educational programme at the expense of an effective voter information programme for each election may be counterproductive.
Election regulations
Election legislation may, or may not, empower election management authorities, or other entities of the state, to develop regulations governing the election process. Regulations serve to explain or clarify provisions of election law and instruct or guide election administrators and participants in the electoral process. Regulations can cover such issues as campaign or election related deadlines, nomination or campaign finance reporting procedures, allocation of free airtime, voting station arrangements, the processing of voters on Election Day, criteria for determining whether or not a ballot is invalid, and counting procedures. At times, these regulations may resemble forests in which voters and educators can become lost or, in some cases, even entangled by legislative underbrush.
Timing
Regulations often follow legislation. Yet these regulations may contain details that educators need to refine significant parts of their programmes. If educators plan to familiarize voters about what to expect on Election Day, for example, then they will need detailed knowledge of voting station procedures. These details may be addressed through regulation rather than through law. If regulations are adopted relatively late in the election campaign, or are subject to continuous revision, the amount of time available for educators to formulate complete programmes becomes limited. In many transitional environments, where the election law itself may be in a state of flux proximate to, or even in the midst of, an election campaign, the odds that regulations can be adopted in time to provide necessary clarification may be low.
The country of Georgia during the 2000 election campaign provides a case in point. In the final weeks of the election campaign, the Parliament was still debating substantive changes to a number of laws governing elections. As a result, it was ultimately unclear which version of the relevant laws would apply. Under such circumstances, it was virtually impossible to issue regulations for the purpose of clarification. On what would such regulations be based? Among the details to be decided were: what forms of voter identification would be accepted on Election Day? and what was the proper method for marking a ballot? These are the types of details that must be addressed by educators in a timely way.
Even if an election law is firmly in place, such factors as a short election campaign, limited resources to devote to an election and the absence of a permanent election management authority can combine to result in a situation where the election calendar overtakes the issuance of necessary regulations. Under these types of circumstances, there is a very real jeopardy for educators. If regulations are adopted or changed after a voter education programme has been launched, the result can be confusion on Election Day - the very opposite of what was intended by the programme.
Detail
Regulations are not so much designed for voters as they are for those administering and contesting the election. Yet certain details may well impact voter participation in the process. As a result of inadequate legal provisions or limited training of electoral staff, regulations may be quite detailed. Detailed regulations can encumber educators who may have difficulty addressing these in their programmes. A high level of detail can be difficult to accommodate in straightforward and brief messages designed for television, radio or posters.
Decisions will need to be made about which media and formats can best accommodate more detailed information. There will also be concerns about loss or clarity or theme in the face of too much technical information. For some voters who are unfamiliar with or unsure of the voting process, however, there may be a desire for more rather than less information. Identification and targeting of these groups of voters will help in directing more detailed information to those who need it.
Authority
While the adoption of 11th hour or detailed regulations may make the job of educators more difficult, the absence of regulations can also be problematic. In some transitional environment, the election management authority or other responsible state bodies may not be conferred with the legal authority to adopt regulations. This situation can also be troublesome. If there are gaps in legislation or confusing, or even contradictory, legal provisions, the election management authority may be powerless to bring clarity or uniformity to the election process. Ultimately, both administrators and educators may have some of the same questions as voters about how the process is supposed to work. If these questions cannot be answered in a timely fashion, the voter education programme will be incomplete and voter confusion is likely to persist.
The Role of the Educator
Educators will want to scrutinise all existing regulations carefully and make sure that they receive the regulations in both draft and final forms (without mistaking one for the other). In draft, educators may want to comment on how the regulations may affect their educational task. With the final version, educators will have to use educational programmes to convey the details of the regulations correctly, and, if necessary, amend educational materials and presentations to ensure ongoing accuracy. If changes warrant, they may even consider ways to re-educate those who have already gone through their initial programme. Perhaps most important, educators may urge the publication of full and final regulations as early as possible and the authorities to stick to them despite any temptations to the contrary.
Legislative vacuums
In some situations, voter education may be launched in a legislative vacuum. Legislative vacuum's can affect voter education in two ways. First of all, the election law may be silent on the role of election management authorities and other entities in conducting voter education activities. This may be the result of an oversight, or an intentional effort to limit the franchise or keep the electorate in a state of ignorance. If the electoral system is being reformed, there is also the possibility that legislation fails to acknowledge the voter education needs that are emerging.
The absence of election law provisions that adequately provide for voter education will likely exacerbate general uncertainty about the electoral process. Educators within election management authorities often face inertia if there is no legal mandate for voter education. And there may be political or financial ramifications if they opt to proceed with voter education in the absence of a legal mandate. Other organisations may be unwilling to commit resources for voter education programmes that may be rendered obsolete by unforeseen discrepancies between the projections of educators and the intentions of legislators.
Secondly, there may be gaps in legislation with respect to fundamental aspects of the election process that need to be communicated to voters. Does the law adequately and clearly address, for example, such issues as: voter registration procedures; necessary forms of identification on Election Day; the process and deadlines for filing complaints; opportunities to vote early, via mobile ballot box, or by absentee ballot; the proper method for marking the ballot; and voting station procedures on Election Day? If not, it will be very difficult for educators to address voters' questions about the process.
While legislative vacuums are not desirable, they do occur. Waiting for them to be filled may be impossible. Education planning takes time and organisation. And the less time that is allowed for this, the higher the costs may be, not to mention the risks of wasting resources and adding to public confusion.
Overcoming Legislative Vacuums
In the event that there is no legislation, or at least legal provisions, pertaining to voter education, measures can be taken to ensure programmes do not dissolve into platitudes, unhelpful generalities, or inaccurate and misleading statements.
First, educators should be clear in their own understanding of their mission, declare it often, and maintain allegiance to it.
It may also be useful to consider the context in which legislation was adopted or amended. Under what kind of time constraints and political pressures was the legislature operating? What was the rationale behind various provisions as well as options that ultimately were not adopted? Will there be opportunities for further reforms in the future? What obstacles might prevent reform? Undertaking such an assessment can help educators better understand what may be possible at a given point in time and to better plan for the future.
While educators may not be able to clarify every single issue in a given election, it will still be possible to communicate important principles and information. It may not be possible, for example, to say whether voters will have to produce identity documents, voting cards, or have their fingers marked with indelible ink. But it is possible to communicate why there should be no duplication of votes and the various ways to prevent this.
Empower and encourage participants early in the programme to seek information for themselves. Contact lists, basic source documents, and networks are all useful resources for this. The uninitiated may also be taught to read and understand basic legislation in order to track it when it becomes available or throughout an amendment process.
There is also an education and advocacy role that can be played by educators, whether in election management authorities or in civil society organisations, relative to public policy makers and legislators. Sometimes it is useful to explain or reinforce how both gaps in legislation and an ill-informed or confused electorate can impact on the efficiency, uniformity and legitimacy of the electoral process. Illustrate how past problems might have been avoided through better legislation combined with adequate voter education.
The Importance of Transparency
The ability of educators, among others, to follow the adoption of new legislation, track the amendment of existing legislation, or to have input to the electoral reform process will depend, in large measure, on their ability to access information and decision-makers. If parliamentary hearings and debates on electoral reform are not open to the public, if there is no public notification and discussion period, if drafts or even final versions of the law are not made widely available, it will be difficult to conduct voter education in an informed and timely manner.
In some transitional and post-conflict environments, where there are 11th hour changes to election laws, where there are limited resources and networks for printing and distribution, and where there is neither a legal foundation or a political tradition of disclosure, it is not uncommon to find both administrators and educators working without the latest version of the law. Promoting transparency needs to be an integral part of the electoral reform process as countries move toward more democratic systems of governance.
