Contents and Need for Administrative Regulations
No electoral law, however complex or detailed it may be, can or should be so comprehensive that it regulates every last aspects, like the determination of the various material elements used in an electoral process (ballot boxes, ballot paper, voting booths and a wide range of forms), the subsistence and travel allowances the electoral personnel are entitled to, the specific rules for the display and rectification of the voters list for each electoral process, the sending out of electoral publicity, etc. Each of these aspects requires regular adaptation or modification, usually for each election.
Therefore, these aspects--fewer in number in comparison with the elements discussed up to now--but essential for the smooth operation of the elections, have to be regulated administratively.
Authority That Promulgates Administrative Regulations
The essential problem of these regulations is determining which would be the proper authority to draw them up.
An electoral process is characterised by, among other things, the great number of administrative measures interpreted and applied according to the law which have to be put into practice in very short periods of time and which are, in addition, preclusive. For example, a delay in naming the candidates necessarily has an effect on subsequent electoral operations, perhaps even to the point of making them practically impossible.
Therefore, a dual scheme in which this regulation should be the responsibility of a different organisation from the one that handles the processes is neither operative nor are there any significant precedents for such a scheme. The fact is, however, that there is a large variety of electoral structures (independent, attached to the Parliament, to the executive Power, permanent, temporary, etc.). For display purposes and to greatly simplify, we can establish a functional distinction between two groups of systems from this point of view:
- those that choose to form an independent electoral body which also handles the execution and the control over the electoral process (as occurs in Costa Rica, Nicaragua, Guatemala and other Central and South American countries, as well as in a large number of African countries, Australia and New Zealand)
- those that have a dual system of electoral administration, where the electoral processes are executed by the general administration of the country, whilst the management and control of these very processes are entrusted to an independent organisation (Argentina, Spain, the majority of the European Union countries and some of French-speaking Africa, such as Senegal, the Central African Republic and the Ivory Coast)
It is, however, essential to point out beforehand that the adjective 'independent' is used in a sense that could lend itself to certain misinterpretations, as it is used both to describe a kind of functional autonomy with relation to the other branches of the government as well as for systems in which this means constitutional recognition of their status as a fourth power of the State.
In the countries where there are independent single electoral bodies this regulation obviously is adopted. At times, as in the constitution of Nicaragua, its configuration as a power of the state is carried to the utmost extreme, so its decisions are not controllable by any other power, neither by the judiciary nor by the constitutional court, where one exists.
This situation does not occur, however, in the dual systems of electoral administration. Within these, it is considered that regulation pertains to the executive power and must be controlled by the judiciary. This scheme, which reflects the most orthodox interpretation of the separation of powers, is complemented by the fact that, prior to its approval, the electoral development regulations should be subject to control of its legality by the electoral body, which is necessary and binding for the executive.
Both procedures tend to guarantee the same objective through different channels, i.e, to prevent the regulations from being partisan or not neutral in any aspects that could compromise the electoral results.
Precisely for this reason an effort is made to reinforce the ordinary
controls envisaged for the regulations that emerge from the executive power by means of actions, in a different form and of different intensity, by the specific electoral guarantee bodies. This reinforcement does not always nor necessarily imply a lack of confidence in the control over the actions of the administration exerted by the ordinary judiciary. Due to the preclusive nature of each one of the phases already discussed, there is usually a need for each of the controls to take place quite promptly, something that is not always possible in ordinary judicial procedures.
