Approach
This section is a study of the legislative structure for democratic electoral processes, focusing on both the fairness and the efficiency of the their regulation and the administration of the available resources for the elections. The starting point is that the determination of whom will hold political power is reached by means of free and fair elections. Elections can be free and fair in various political and social settings, such as:
- under different forms of political systems (e.g., parliamentary or presidential models)
- with various forms of government (e.g., monarchist or republican)
- with unified or decentralised territorial structures of state
Over and above all these classifications, it has to be determined which legal conditions and which organisational structures will guarantee a free and fair electoral system with economic efficiency.
Principles
A free and fair electoral system requires that:
- each and every citizen has the right to participate as a voter and as a candidate
- electoral processes be regular and periodically held
- elections take place in an atmosphere where the basic rights of the citizens are respected
- the voting procedure guarantees freedom, secrecy and accurate counting of the votes
- control of the process by an electoral organisation that acts independently of other powers of the state or government
An efficient electoral system must be based on careful cost control (see Cost Considerations). It is true that the essential aim of elections is to achieve a legitimate government and a regime of freedom, especially in a transition process, since without solving this basic issue, it is not possible to solve the rest of the social or political problems of the country. However, the financial aspect cannot be neglected. No country can maintain an electoral system with costs that are beyond the means of the country (least of all if serious social imbalances exist).
By the same token, international co-operation will be more effective if it helps the receiving country to establish self-supporting electoral organisations, avoiding costly structures that require international funding on a continuous basis. The electoral administration is an essential part of the democratic system. Therefore, it has to be an example of organisational and financial efficiency and not an island supported with international means.
Legal Instruments
In developing the most appropriate legal framework to regulate elections, the following considerations need to be taken into account:
The organisation and execution of elections require an overall regulatory system, covering everything from the constitutional regulations that define the right to active and passive suffrage to the implicit or explicit codes of conduct among the contenders.
The primary regulatory instrument is the electoral law. This legal framework requires widespread agreement on its contents and a reasonable degree of permanence among the most important political forces. Its essential functions are, on the one hand, to specify the elements of the electoral system and, on the other, to develop a set of procedural guarantees that will assure the right to suffrage (see Electoral Law).
However, it is neither practical nor appropriate to create electoral regulations based exclusively on the law, which is difficult to modify. Practical experience in electoral processes proves the necessity to leave some margin for the adaptation and interpretation of the relevant administrative regulations and the decisions of the electoral authority (see Administrative Regulations).
How should an electoral law be formulated? The need for political agreement concerning the electoral regulations becomes particularly evident in transition periods. It is very difficult to define the most adequate strategy for each country beforehand (See Creation and Amendment Process).
By and large, an appropriate intermediate point can be established between:
- The maximalist strategy, that seeks the widest consensus without taking into account the time needed to reach it.
- The minimalist logic, limited to making the absolutely indispensable modifications in the electoral law that existed before to regulate non-competitive elections.
Practical experience shows that both strategies pose serious drawbacks, so it must be defined how much time and dialogue can be invested in the creation of electoral regulations in each case.
Essential Elements
Among the essential elements for an electoral process, the following should be considered:
In the first place, the right to vote must be guaranteed to each person so the absence of unjustifiable discrimination and deprivation of voting is guaranteed (see Deprivation of the Right to Vote).
This means that the reasons for which a person can be deprived of the right to vote observe the principle of classification, are interpreted in a restrictive manner, and, in all cases, meet the need for a better and more free collective expression of the vote.
A problem of a different nature, that must be thoroughly analysed, is the provision in some electoral regulations for the reservation of seats on the grounds of race, culture or even gender, as a result of positive discrimination measures. Although its aim is to achieve political participation by groups historically excluded, it constitutes a notable exception to two basic principles of the electoral organisation:
- the principle of 'one person, one vote'
- the idea that political representation means representation of the whole of the nation and not of particular groups or strata
This type of positive action must therefore be temporary, as instruments to achieve the objective of integration and not as a permanent system of attribution of seats that could slip into neo-corporate approaches. In the second place, we have to consider a material, regulatory element that contributes decisively to the full assertion of the right to vote, namely the existence of an adequate voters register, or voters list (see Qualifications and Identification). In the third place, it must be stated that the electoral regulations basically govern a procedure. There are numerous decisions that have to be made for the adequate administration of the electoral process, such as when the elections are called and the announcement of the results. In this regard, it must be decided:
However, there are few key aspects of elections for which so many different solutions are offered as for the organisational structure in charge of the organisation and control of the electoral processes (see Electoral Organisation).
As a tendency, one might say that the bigger the distrust in the ordinary institutions of a country, the more powerful and independent the electoral organisation will be, with the exception of the democratically consolidated federal states.
It is thus possible to establish a 'scale of distrust', in which the maximum degree will be the models of electoral courts (characteristic of Central America) and the minimum degree in systems that do not alter the normal functioning of the administration and the judiciary when elections are held (like Germany).
Although it is difficult to take a stand beforehand on the most suitable model for each country, it will appear that the most extended one in the countries that recently gained access to democracy is the one entailing the establishment of an electoral commission. These organisations replace the governmental administration entirely, but leave the legal jurisdiction or the constitutional court intact on electoral subjects and thus avoid the forming of a fourth power, as occurs in the electoral court models.
These, among others, are the issues we will be dealing with throughout the section 'Legal Framework,' with the intent of providing tangible solutions or, at least, the elements necessary to analyse the problems and apply the principles of justice and efficiency to each case at a reasonable cost to the country in question.
