Introduction
Comparative constitutional law shows that, normally, the choice to draft a new electoral law is only decided upon in extreme circumstances, when there is a profound crisis within the power structures. This mostly happens in the case of a transition process from an authoritarian regime, a crisis that makes this new electoral regulation indispensable for organisational as well as for lawful reasons.
We will therefore make a distinction between:
- 'creation' of an electoral law, a term used to define the cases in which it is necessary to fully draft the electoral regulation of a country from scratch, as a consequence of a change in political regime, and
- 'reform', referring to adjustments to an electoral regulation that do not imply a change in political regime and are, therefore, relatively less comprehensive--even though they may imply the modification of important elements of the electoral system--insofar as some of the elements are
absolutely fixed: those that have a bearing on the right to active and passive suffrage, to the participation of the political parties and to the honesty of the process, which preclude any valid comparison with the modifications derived from a change of political regime (see Practical Advice for Electoral System Designers.)
This distinction is furthermore confirmed by practical reasons related to the elaboration process thereof.
Insofar as electoral 'reforms' imply a much less severe crisis in the political system, they can be elaborated in greater detail and with active participation of the political subjects and administrative organisations in charge of the process.
On the other hand, the 'creation' of a new law tends to be a compelling need insofar as an effort is made to cover a gap in legitimisation as well as organise the new emerging power in a timely manner.
We will therefore deal with the two cases separately.
