If we accept the theory that, with the possible exception of some federal democratically consolidated countries, the greater the political distrust in the ordinary and smaller institutions and the more restricted their legitimisation to adopt certain decisions, the more powerful and independent the electoral organisation of a country will be, then we could classify the different electoral administrations according to a 'scale of distrust', set out in the following sections:
Maximum Degree of Confidence
The greatest confidence in the democratic principles of its institutions is manifested in countries that entrust the administration of their electoral processes to their ordinary central and local administrative organs (Germany, United Kingdom, Sweden and Ireland), even granting them certain arbitration functions to solve disputes among contenders. The decisions they make can only be contested in the ordinary courts or the constitutional court, which will act as an electoral court, normally with special procedures and indictments that guarantee the resolution within a period of time suited to the electoral process.
In short, this is a group of countries that considers that their executive,
judicial and ordinary parliamentarian institutions are perfectly able to carry out the electoral operations in view of their neutrality and their procedures. And this premise is not questioned by public opinion. In this regard it is noteworthy that, for example, the Federal Registry Office in Germany, which is a governmental organisation, decides quite peacefully and
without any real possibility of rancorous appeal, which candidacies may and which may not stand in the elections.
Monitored Confidence
On a another level, there are countries like Spain or Argentina that generally consider that their executive and judicial institutions are adequate to handle an electoral process, but at the same time they exercise a degree of control over the actions of the executive power and create a mechanism of arbitration as a prior step to avoid having to resort to a court. The latter cannot always resolve the appeals made against the naming of candidates or candidates-elect with the promptness required in electoral processes, so an electoral management body is created with powers of control over the processes and not of administration. They are temporary organisations that are formed upon the announcement of the elections and disbanded soon after any appeals against the announcement of those elected have been resolved. By their composition and duties, they are quasi-judicial organisations. Their members are largely practising judges designated by a random procedure (the drawing of lots and by pre-established order for each election), complemented with a minority representation of the main political parties appointed by parliament.
They carry out functions of arbitration, normally in an executive manner, thus avoiding having to appeal to inevitably slow judicial processes. However, their decisions can be contested in the ordinary courts and, if appropriate, in the constitutional court by demanding due process of law. For example, the Spanish Constitutional Court declared an article of the electoral law, that on a certain matter had been interpreted in such a way that the decisions of the electoral management body could not be appealed against in the court of justice, as unconstitutional (STC 103/96 of 11 June).
In short, this is a model that acknowledges the need to reinforce the ordinary operation of the institutions in the electoral process, but without casting a doubt on the fact that the executive power must be physically entrusted with the electoral operations, or that the resolution of legal disputes that emerge during an electoral process should in the last resort, be the jurisdiction of the judiciary. Electoral organisations that follow this model are therefore temporary reinforcements of the control structures of the executive power and mechanisms of resolution of extra- or pre-judicial conflicts.
Third Level of Distrust
Another level of distrust is manifested in the organisation of permanent electoral management bodies of a similar composition to those outlined above, but commissioned directly with the organisation of the elections, a task that is, therefore, taken away from the executive power. Since elections are not a continuous activity but these organisations are permanent, they tend to assume functions that are not directly electoral, for example, acting as a central civil registry or a census office. They also fulfil mediation tasks, but their decisions are not under the control of the ordinary judicial or constitutional powers.
In short, this is a model in which the executive power is fundamentally distrusted, losing all jurisdiction in the organisation of the elections, but not so the judiciary. A different, parallel administration is created, but it is subject as such to the judiciary. This is the model applied in countries such as Bulgaria, Israel, Jamaica, and New Zealand.
Highest Level of Distrust
The highest level of distrust is reflected in the electoral courts model--organisations that follow the previous two models in their composition but that not only supersede the governmental administration in the organisation of the process, they also assume all the mediation functions among the electoral contenders. Configured as a fourth power of the state, their decisions cannot be appealed, and they cannot be checked by any of the other powers--judicial, executive or legislative.
This is an extreme model, based on the premise that the ordinary structures cannot operate with sufficient neutrality at a time when those who will hold the political power is being determined, insofar as they have a direct interest in the results since they are dependent on the party continuing to remain in the government for them to maintain their executive or judicial positions. This model is characteristic of Central America. A typical characteristic of these organisations is that normally they are better equipped than the administration, with a greater tendency towards professionalism and much more stable than the general state administration itself.
Which specific model is adopted in each electoral system undoubtedly depends on the degree of consolidation that its democratic institutions have reached. In countries in political transition, the general rule appears to be the creation of a permanent electoral management body, appointed by parliament and with judicial roles as well, that will take care of the administration of the process, but whose decisions can be revised judicially in the last resort. This is the model that has been imposed across the board in the east of Europe (Poland, Lithuania, Hungary, etc.), as well as in Africa, and it has been encouraged by international organisations and other non-governmental bodies (NGOs) specialised in the subject. These countries have, therefore, opted for the creation of an ad hoc administration, that operates autonomously from the other powers of the state (the executive in particular) and is formed on a pluralistic basis.
In general, this model has worked very satisfactorily in guaranteeing the acceptance of the results by the parties previously in power. It has, furthermore, had the added advantage of being a very adequate channel of international collaboration and funding that could thus be offered to a neutral self-administrating organisation. This has at times permitted the country to be supplied with indispensable instruments in many other fields (such as the census or personal documentation of the citizens) that would not have been possible with national funds.
It is, therefore, unquestionable that this is the right type of organisation to be formed for a political transition period. However, some doubts arise. As the transition process becomes more successful and a real separation of powers is structured that guarantees the rights of the citizens, that is to say, the moment a country goes up on the scale of confidence we referred to above, it becomes justifiable to wonder whether it makes sense to maintain an independent organisation to oversee elections.
Another element is worthwhile considering. Electoral organisations are generally disproportionately costly compared with the standard public service structures of the country. This does not normally cause much concern, because it is considered that their mission to promote democracy must be valued according to criteria other than cost. It is characteristic that when transition elections are successful, nobody asks how much they cost, especially if they were paid for in total or partially with aid obtained through international co-operation. However, precisely insofar as the process is successful and democracy is normalised, cost considerations start to arise. International aid dwindles, and the cost of elections may then become exorbitant for the state in question. At this stage, the question may come up again of whether it makes sense to maintain a differentiated electoral structure, or whether costly political inertia is being maintained.
