Where Does the Law Come From?
The electoral law and regulations are made by the national legislature - although there are
occasions when they can be amended by, for example, a national referendum. In most cases the
current electoral law will have evolved over many years. There are a few cases where, as a result
of the national circumstances, the electoral law has been prepared without recourse in a major
way to previous legislation. The rules and regulations prepared in 1996 for the elections in
Bosnia and Herzegovina (see Rules and Regulations - Bosnia-Herzegovina) are an example.
The United Kingdom (GB) Laws and Regulations are contained in a series of Acts and
Regulations which in many cases have to be cross-referenced to find the up-to-date position. The
situation in which there is a single document setting out the electoral law comprehensively is a
major advantage. The opportunity to initiate legislation may rest solely with the national
government, but in most systems, the electoral commission or electoral manager can put forward
recommendations and suggestions. Opportunities to comprehensively review the electoral law
and regulations may not often occur. The systems in Canada (CA), Australia (AU) and New
Zealand (NZ), where there are national electoral commissions that can put forward
recommendations for improvements on an objective and impartial basis, would seem to have
advantages over the United Kingdom (GB), where the lack of parliamentary time and an
organisation of national status putting forward ideas frequently limits the opportunity for much
needed reform.
Assistance with the drafting of electoral legislation can be obtained from many external sources -
including the United Nations, IDEA, IFES and the Commonwealth Secretariat.
Responsibilities of the Electoral Manager
The prime responsibility of the electoral manager is to conduct the electoral process in
accordance with the law and regulations. Depending on the national circumstances the electoral
manager may have had an input into the content of the law and regulations. In Haiti (HT), the
Electoral Commission was directly involved in the preparation of the electoral law. In the United
Kingdom (GB), the electoral managers association has made representations on many occasions
for improving the electoral process, but these representations have not been acted upon.
Nevertheless the law and regulations must be observed, otherwise the penalty on the electoral
manager can be severe. The electoral system will involve many different participants - the
electors, the parties, the candidates, the courts and civic organisations are among the principal
actors. Ideally the law should be accepted on an equal basis by all of these participants. A
system in which one section of the community is fundamentally opposed to part of the electoral
law will make the role of the electoral manager very difficult.
The Central and East European Initiative of the American Bar Association prepared a report (see
Election Law Issues, American Bar Association) that outlines many issues which need to be taken into account in preparing an
elctoral law.
In summary, the electoral manager must comply with the law but also identify problems and
areas where change is needed and submit reports and recommendations to the law making
authority.
Examples of Electoral Laws
No two countries have the same electoral law or regulations but there are many common areas.
The sample section on electoral law contains a number of examples: for Albania (AL) see
Electoral Law - Albania; for Latvia (LV) see Electoral Law - Republic of Latvia; for Cambodia (KH) see United Nations Electoral Law for Cambodia, 1992; for Canada
(CA) see Canadian Election Act - Chapter 1; for Angola (AO) see Electoral Law - Angola; for Bosnia/Herzegovina (BA) see
Rules and Regulations - Bosnia-Herzegovina; for Australia (Index) (AU) see Electoral Law Index - Australia; for Palestine (partial) see Electoral Law Index - Palestine Electoral Law;
for Ghana Extract (GH) see Public Elections Regulations - Index and Extract - Ghana; and for Nicaragua (Extract) (NI) see Extract - Nicaragua Electoral Law. This
selection of laws or extracts from various parts of the world provides a good range of examples
of the way in which electoral laws are framed.
Some of the laws are comprehensive in setting out the electoral process in detail; others deal with
the broad principles, leaving the detailed arrangements to be set out in secondary legislation.
There is considerable advantage in having the whole electoral law contained in one document
that deals logically with each step of the process.
The Role of the Courts
The electoral law will set out the procedures for appeals to the courts. The problem with resort to
the courts is that the time available during key parts of the process for the courts to be involved
can be very limited, and often the courts only become involved after the result has been
announced. Issues such as the registration of parties and candidates and petitions against the
voters lists, which are all pre-polling day activities, are common tasks for the courts. The election
petition process used in the United Kingdom (GB) and many Commonwealth countries allows a
candidate to challenge the election result if the correct processes have not been followed. The
court may then order that the election is rerun or that a different candidate is declared elected. In
many systems, the decisions of the courts will have precedent value. This status applies
particularly where the law is not absolutely precise and the courts determine how it should be
interpreted. In the United Kingdom (GB) the decisions of the courts over the years have clarified
what is done when a ballot paper is not marked absolutely in accordance with the law and
whether the vote should be allowed or voided for uncertainty. It is possible to exclude the courts
from any part in the process, leaving all decisions to be made by a national electoral commission.
The commission is then responsible for dealing with all complaints arising from the electoral
process. This system, however, requires that the electoral commission be perceived as impartial,
so recourse to the courts may be a more acceptable arrangement.
Another important role of the courts is in dealing with offences against the electoral law. These
offences can involve staff who have not carried out their duties correctly; or candidates or parties
which have not complied with the rules governing their activities; or citizens who have breached
the rules about, for example, not trying to influence voters.
Features of Electoral Law
Like other aspects of the electoral process, no two countries have identical election laws. It is not
intended in this section to analyse in detail what the ideal election law should incorporate.
However, the key features the law should cover include:
- setting out what organisation or person is responsible for organising and conducting the
electoral process and the appointment of election staff;
- setting out rules and
regulations for political parties and candidates;
- setting out the process for the
establishment and review of electoral areas and boundaries;
- setting out the process for voter registration and determining who can and cannot vote;
- establishing rules for the setting of the election timetable;
- establishing rules for
the conduct of the voting process and the counting of the votes;
- making provision for
absentee voting;
- establishing rules for party and candidate conduct and funding;
- establishing rules
for the conduct of the media and other third parties and for governing the election campaign;
- setting out clearly offences in connection with the electoral process;
- establishing
a clear and rapid process for dealing with complaints and challenges.
The Ability to Experiment and Innovate
The rigidity of electoral laws may make it very difficult for the electoral manager to look at new
ways of carrying out tasks. The inclusion of a provision within the laws and regulations to allow
experiments in the conduct of the electoral process is a major benefit. Such experiments need to
be subject to safeguards and consultation with interested parties is important. Experiments in an
environment marked by mistrust and hostility need careful thought - in these occasions
transparency may be the prime concern.
Regulations and Working Practices
Very few electoral laws are absolutely prescriptive and specify every individual action and
process through the electoral event. The electoral manager is thus faced with prescribing working
practices.
One area in which working practices are commonly established by the electoral manager
concerns the manner in which the polling site is laid out. The law may determine the process
step by step but is unlikely to prescribe the actual layout or the way in which the counting centre
is laid out. In setting out working practices, the electoral manager should ensure that these do not
conflict in any way with the law or regulations or result in a situation in which any partiality is
shown. It is very easy for discretion to be used, which at face value appears sensible, but it may
result in complaints. The advice must be to follow the law - not start to amend its effect by
adopting working practices which are inconsistent with its provisions. Working practices are
commonly applied in terms of staff appointments. The law may well preclude certain people
from being appointed as, for example, poll workers - the working practices may go much further
in terms of setting out equal opportunities criteria, qualifications and age issues to be taken into
account.
Does the Law Cover All Electoral Issues
Most legislators start off with the intention of creating electoral law that covers every
conceivable issue which may arise during the electoral process. It is likely, however, that the
electoral manager will be faced with a situation in which certain activities connected with the
electoral process are not capable of being fully prescribed within the law. Common examples are
in the areas of media activities and campaign funding. In such areas, it is important for the
electoral manager to be aware of what responsibilities are not in his or her control. For example,
whilst it is possible to prescribe in the law limits for the individual expenses of candidates or
parties, actual control of these expenses is very difficult. Other organisations can easily support
campaign activities and, with media controls, what is fair in one person's judgement is not fair in
another person's. The electoral manager can only apply the law fairly and promptly. If the
activity at the center of a complaint is outside the law then the electoral manager should make
that clear and signify that he or she has no standing in the issue.
Interpretation of the Law
Few electoral managers have to work entirely off their own initiative. When a situation occurs in
which the law does not prescribe a clear solution and all relevant advice has been obtained, the
manager will have to interpret the law and decide how best to deal with the situation. In many
countries there are electoral manager associations or groups. In such associations, it becomes
clear that situations are rarely unique and that another manager has probably been faced with the
same problem. The role of electoral manager groups is important in achieving consistency of
interpretation and consistency and equality in working practices. Every country will have an
ample supply of specialist lawyers or attorneys who can be engaged to give advice on the
interpretation of the law. Government departments may offer advice. In the United Kingdom
(GB) the Home Office, which is the Government Department with responsibility for electoral
legislation and regulation, issues circulars that give advice on the effect of legislation and how it
should be implemented. It is in the interest of electoral managers to ensure that the law is
interpreted in a consistent manner for problems will be created if, in various areas of a country,
the law is applied differently.
Simplicity and Transparency.
The electoral law will not be effective if its provisions are so complex that they cannot be
understood by the electorate or be applied in a fair and transparent manner. Legislators often
work detached from the actual process of implementation. At operational levels, systems need to
be capable of being applied in organisations which have limited resources and expertise. The
polling process in the Namibia (NA) elections of 1989 was of high quality and subject to
checking at every stage by independent observers. The bill for the elections was also very high
with a cost per vote rumoured to be the highest of any election ever held. In the Estonia (EE)
elections of 1994 the electors voted by writing in the number of the candidate or party they
supported onto to a simple and easily understood ballot paper. The voters lists were prepared at
minimum cost with opportunity for revisions up to polling day. The whole process was observed
by a handful of international observers; it was simple, transparent, effective, and also very
inexpensive.
Codes of Conduct and Regulations
Two electoral laws in which there have been a wide measure of international input are those for
Cambodia (KH) in 1992 (see United Nations Electoral Law for Cambodia, 1992) and Bosnia / Herzegovina (BA). Both contain codes
of conduct for a variety of the participants involved in the electoral process. The Cambodia (KH)
code is contained in Annex 1 - pages 61 and 62 and governs primarily the conduct of the
candidates / parties. The Bosnia / Herzegovina (BA) codes are contained in Chapter VII and deal
separately with the various electoral participants. Inclusion of codes is a way of setting out
clearly standards of conduct which have legal force and can supplement the normal electoral law
provisions regarding offences. The media code for Bosnia / Herzegovina (BA) (page 34) is a
particularly good example of standards which media members should observe.
Regulations have the same force as law if made through the appropriate legislative procedures.
In the United Kingdom (UK) much of the detail of electoral practices is contained in regulations
which are made under the authority of the main electoral law. It must be clear to all participants
whether codes of conduct and regulations have full legal force or are merely recommendations.
For further information, see Legislative Initiative: Direct or Indirect and Electoral Management Structure.
