Regulatory Levels
The first thing to bear in mind when analysing the legislative structure of electoral processes is that the rules which govern the organisation and holding of elections make up one overall system consisting of the following levels:
- constitutional rules
- electoral laws
- complementary regulations (though not necessarily statutory) which could originate from the general state administration or the specific organs that make up the electoral administration
- explicit or implicit codes of conduct accepted by the contenders that exist somewhere between the legal and the agreed upon social rules and occasionally promoted by the electoral administration or even by international organisations giving electoral assistance
The combination of these four levels produces the complex legal network required for the holding democratic elections. In addition, there is intercommunication between the levels, so the shortfalls in one have to be covered by another, albeit neither necessarily nor exclusively by the one
immediately below. Thus, we find that they are overall self-sufficient systems, each one establishing its own combination of regulatory elements.
However, an empirical study shows the following features in the legal regulation of electoral systems:
General Features of Legal Regulations for Electoral Systems
The constitutions of consolidated democratic states include fewer provisions referring to the electoral regulations than those who entered into democratic processes more recently. One can therefore refer to a kind of scale of contents, reaching its minimum degree in constitutions that limit themselves to the inclusion of the characteristics of voting, affirm them to be universal, free, equal and secret and leave the development of the rest of the aspects to law. Its maximum degree exists in constitutions that establish the elements of the electoral system, the main procedural rules and other aspects such as the processing of the electoral roll and the formation of bodies of electoral control and/or administration.
However, the primary regulatory instrument is the electoral law--the rules established by the representation of the will of the people precisely in parliament. Not only is a parliamentary agreement required, but the tendency is to consider qualified or reinforced majorities necessary for its approval. Any electoral law requires extensive agreement by the existing political forces, de facto or de jure. Without this, it would become the target of political discussion, when it should be an accepted, undisputed instrument for alternating or remaining in power. An electoral law that is the center of controversy is not likely to be stable. Precisely because only laws based on an extensive agreement are maintained, it is extremely difficult to modify it in-depth for sociological, political and legal reasons.
Another aspect about which it seems there is universal agreement is leaving the minimum space possible for standard regulations. An effort is made for the laws, i.e., the decision of the people in parliament, to exhaust practically all imaginable aspects of electoral processes, consequently avoiding regulation by a different power. Electoral laws are lengthy and complex and go into a degree of detail that is not often found in other fields. This has at least two negative consequences:
First, the laws are sometimes extremely rigid and thus not suitable for the regulation of a process that has as many contingencies as elections. Regulations whose slightest adaptation requires complex legal revisions cannot work.
Second, the laws may be difficult for citizens at large to understand, even though they are regulated by them. So administering the laws becomes the responsibility of electoral administrators, whether they are civil servants or members of political parties. Thus a dramatic paradox emerges, present in all electoral laws, which reflects a deeper tension between direct and representative democracy, namely, that the law has to be very extensive and go into great detail to ensure that it is the expression of the will of the people and not of some obscure interests of the party in power. Precisely for this reason, it is very difficult for citizens at large to gain access to it; and they have to apply it--everybody without exception--on the same day.
It is not only a vain but also counterproductive pretension, in terms of the practical organisation of the electoral processes, that the electoral law can encompass all the material operations an electoral process requires. Complementary administrative regulations going into the detail of the electoral operations are indispensable.
At the same time, when it comes to leaving these regulations to the executive power a universal mistrust is observed, all the more accentuated when the democratic system is less consolidated. There are two different solutions for this problem:
The most radical solution consists of entrusting it to a specific electoral body, which either does not form part of any of the state powers (by which such organs become somewhat doubtful, stemming from the classical separation of powers of Montesquieu, especially if they are included in the constitution itself) or has a rather parliamentarian setting.
A less extreme solution is to establish that these regulations of governmental origin be checked by the electoral bodies, either beforehand or afterwards. This is more characteristic of consolidated democracies and probably more respectful regarding the separation of powers and the role that both the executive as well as the judiciary powers play within it.
Codes of Conduct
The regulatory circle closes with the so-called codes of conduct. In a broad sense it can be said that no electoral system works without the existence of an implicit code of conduct among the political parties. This includes, for example, acceptance of the results, the unquestioned admission of the rules of the game and even some unwritten rules that regulate the electoral campaign, such as the exclusion of certain matters or forms.
In a more restricted and technically more correct sense, codes of conduct must be interpreted as a set of publicly-endorsed rules of behaviour among the political contenders in a particular electoral process. These rules often fill gaps in the regulations as a whole. They are usually strictly provisional, limited to one sole electoral process.
Nevertheless, it is not true that they are exclusively produced in countries emerging from non-democratic forms of government, because there are some significant examples of implicit codes in consolidated democracies. This happens, for example, when certain subjects that are considered to be common heritage are excluded from the scope of party discussions, and a formal
declaration is made in this regard.
Although the problem stemming from their legal nature and compelling force will be referred to further on, it can be affirmed that they are more like real rules, insofar as their adversaries formalise them and subject them to a certain arbitration, under the auspices of an international organisation or, above all, an electoral organisation empowered to settle any disputes regarding their application.
Structural Principles of Electoral Regulations
This set of regulatory instruments (constitution, electoral laws, administrative regulations and codes of conduct), therefore, makes up the legal structure of electoral processes. The distribution of subjects that must be regulated by each one of them largely depends on non-judicial factors that have bearing on historical and political science determinants. It is difficult to establish general categories or internal rules of distribution. However, from a strictly legal point of view, there are at least three principles that could be considered in structuring the electoral regulations of a specific country:
First, there are elements which should be reflected in the constitutional text itself--namely, those referring to the right to active and passive suffrage and most probably the generic definition of some of the elements of the electoral system. However, electoral regulations should not undergo uncontrolled expansion by embedding every last detail in the constitution. The structure of electoral regulations do not become any more effective or adequate by being written into the constitution.
The main instrument of the regulatory structure is, beyond doubt, the electoral law. As such, it should be the result of extensive agreement and possess a considerable degree of permanence. However, from a technical or legal point of view, it might be advisable to distinguish between two
sections of subjects which deserve to be treated differently.
- on the one hand, regulations referring to the electoral system and to the essential aspects of the procedure, which form the core, legally and/or politically may be subject to consensus over and above the simple parliamentary majority
- on the other hand, those aspects that not only do not require such a high degree of consensus, but this could in fact make the regulations too rigid and thus hamper their adaptation to new circumstances and/or the intervention of sub-state authorities that have to adjust them to specific territorial needs, although they have to be regulated by law
Administrative regulations that complement and adjust general rules to the specific circumstances of each process are inevitable and must be drawn up by the authorities that administer the processes. If it is decided to have electoral organisations whose only task is control, one of their duties should be to see to it that the law is upheld by the executive power. As there should be allowance for the intervention of the judiciary, it will seem preferable for the intervention of these bodies or organs of governance to take place prior to the approval of the regulations.
